When a person makes a claim for dependant support from an estate, the application is usually commenced as against the estate trustee of the estate alone. The beneficiaries are not usually parties.
Rule 9.01 of the Rules of Civil Procedure provides that a proceeding may be brought against an estate trustee without joining the beneficiaries as parties (subject to certain exceptions as set out in the Rule).
However, special provisions of Part V of the Succession Law Reform Act, which addresses support of dependants, require service on others involved in the estate. Specifically, s. 63(5) of the Act requires that “all persons who are or may be interested in or affected by” an order for support must be served with the Notice of Application in accordance with the Rules of Civil Procedure before an order for support may be made.
Such an “interested person” is entitled to be present and to be heard at the hearing.
The court may dispense with the need for service where every reasonable effort has been made to serve those entitled to notice, and where it is not possible to identify all of the persons entitled to notice.
Who an “Interested party” is, is not defined. However, guidance may be taken from case law addressing who has standing to challenge a will. Clearly, beneficiaries named under a deceased’s will, or intestate heirs would be affected by an order for support, and would be entitled to notice.
Arguably, creditors of an estate would be affected by an order for support, as the support payments may take priority over their claim. See our blog on the priority of support orders, here.
Often, the dependant support claimant has limited information about the estate and who the “interested parties” in the estate might be. The estate trustee usually has this information. Therefore, the initial Order Giving Directions will often address this by requiring that the estate trustee arrange for service of the Notice of Application for dependant support on the interested parties known to the estate trustee.
As to the manner of service, as the person being served is not a party, “personal service” or an “alternate to personal service”, as defined in the Rules of Civil Procedure, is not likely required. Under Rule 16.01(3), the document can likely be served by mailing a copy to the interested party, or by email, if the court allows this. Good practice is to specify a manner for service in the Order Giving Directions.
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Another recent decision out of Alberta, Thompson v AltaLink Management Ltd, sheds further light on the thinking of Canadian courts and tribunals regarding virtual litigation, going forward.
In this dispute, one party argued that proceedings should occur in-person, rather than virtually. Making an appeal to “common sense,” he noted that (as of August 2021) there were no Covid-related restrictions in Alberta and that one couldn’t predict whether renewed restrictions would be imposed in the future. He also noted the advantages of observing witnesses and decision-makers and their natural reactions first hand.
The other party did not challenge this position, per se, but noted that the participants in the proceeding (including administrative staff) might not yet be comfortable “returning to normal,” risking exposure to infection during the ongoing pandemic.
It was ultimately decided that one party and his counsel would participate from a hotel close to his location in rural Alberta, while all other participants and staff would participate virtually. The degree to which in-person participation was allowed in this case was mainly a technological consideration, however, the overall reasoning in this decision involved a balancing of considerations of fairness of proceedings (favouring in-person) and safety of participants (favouring virtual). The latter consideration was deemed to be of greater significance, in light of Covid.
It remains to be seen when exactly the courts will go back to full in-person litigation, or whether elements of virtual or hybrid proceedings are here to stay. The pertinent question right now is under what circumstances would a party be compelled to attend in person, if they would prefer to remain virtual. Until the pandemic is over, this will likely remain an open question.
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On October 1, 2021, the Law Commission of Ontario released its Final Report focusing on legal issues related to palliative care, end-of-life care and medical assistance in dying (collectively described as “last stages of life”).
One of the major areas for reform identified in the Report is dispute resolution for persons who are dying and those who support them. On this point, the Report notes:
Death, dying, and bereavement are highly emotional and important experiences for everyone involved – patients, family, friends and health care providers. Conflicts in the last stages of life may revolve around health care decision-making, a preference for treatment, or concerns about the quality of care being provided. Disagreements can take place in multiple care settings about many different matters. Disputes may involve patients, SDAs [substitute decision-makers], family members, health care facility and providers.
Current mechanisms in place for resolving disputes during the last stages of life include accessing the Consent and Capacity Board (a tribunal created under the Health Care Consent Act that adjudicates disputes related to capacity and decision-making), or the Superior Court of Ontario. For people in care, the Final Report also notes that some health care facilities have a “step up” dispute resolution process that can be accessed, for example, when communications between substitute decision-makers and treatment teams become polarized, which brings in bioethicists, risk managers, social workers or spiritual chaplains to provide information and guidance.
However, these measures can also fall short when dealing with conflicts arising during end-of-life care. The Final Report points out:
- Not all facilities have a “step up” dispute resolution process, meaning not all patients and substitute decision-makers have access to an early dispute resolution process before applying to the Consent and Capacity Board.
- The Consent and Capacity Board may not hear all disputes that deal with end-of-life care and may decline jurisdiction if:
- there is a dispute as to the validity of a Power of Attorney for Personal Care or a dispute over who is authorized to act as an individual’s substitute decision-maker;
- a patient or substitute decision-maker applies for directions because their wishes are not being followed by the patient’s treatment team; or
- a physician withholds or withdraws treatment and declares a patient dead or brain dead, and thus no longer a patient.
- Some patients also die before their applications are heard by the Consent and Capacity Board.
- It can take months to appeal a decision from the Consent and Capacity Board to the Superior Court. Currently, the Health Care Consent Act provides that appeals from Board decisions are to be scheduled “at the earliest possible date compatible with a just disposition”, but does not specify any actual timelines.
- Proceedings in the Superior Court, such as an appeal or an application for an emergency injunction, tend to be more complex and expensive than proceeding before the Consent and Capacity Board, and are often delayed, making them less suitable for end-of-life disputes where time is often of the essence.
After consulting with the public, focus groups and experts, and commissioning multiple expert research papers on topics salient to the last stages of life, the Law Commission has made a number of recommendations, including:
- The introduction of province-wide informal mediation services for end-of-life care, which would serve as an early dispute resolution mechanism and could be accessed by patients, substitute decision-makers (such as powers of attorneys), health care providers, and health care facilities.
- A review of the mandate and jurisdiction of the Consent and Capacity Board, including updating the Board’s powers to be more responsive to end-of-life cases.
- Amending the Health Care Consent Act to expedite appeals from the Consent and Capacity Board to the Superior Court of Justice that involve the last stages of life.
At this time, it is unknown whether the recommendations of the Law Commission will be implemented. However, in the meantime, a step that individuals can take to reduce potential conflicts and disputes from arising during the last stages of life is engaging in advanced health care planning. The Final Report notes:
Not enough people are planning for the last stages of life … Planning has been shown to improve patient outcomes; ensure alignment between a person’s values and treatment; lessen family distress; decrease hospitalizations and admissions to critical care; and decrease unwanted investigations, interventions, and treatments. Yet fewer than 1 in 5 Canadians have engaged in advance care planning.
Steps that you can take today include:
- appointing a substitute decision-maker, such as a Power of Attorney for Personal Care, to make decisions on your behalf;
- discussing your wishes, values, and beliefs with your substitute decision-maker. The Final Report points out that “[t]he law is clear that [substitute decision-makers] must consider the patient’s prior capable wishes, values, and beliefs, if known and applicable.”
- completing an advance directive or “living will,” which sets out your wishes in terms of future care.
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For further reading on advance care planning, see the following blog posts:
This week on Hull on Estates, Fred Tonelli and Doreen So discuss the recent decision of WORSOFF v. MTCC 1168, 2021 ONSC 6493 (CanLII) and its implications regarding the future of in-person litigation, in light of the legal profession’s growing comfortability with remote work, as well as the positive effects remote litigation has had for the more effective administration of justice.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
A rare but important rule of the common law which sometimes arises in the context of estate litigation is the so-called “slayer rule,” on which we have previously written.
The slayer rule follows from the principle of ex turpi causa – that one cannot profit from their own crime – in that a beneficiary who is found guilty to have murdered the giftor/testator of their particular benefit consequently loses their benefit.
For example, if a daughter was found to have murdered her mother, rather than accelerating her inheritance, she would lose whatever benefit she was entitled to receive under her mother’s will.
The most recent appearance of the slayer rule in Ontario estates law occurred in a March 2021 decision, The Bank of Nova Scotia Trust Company v Rogers, in which a son was convicted of murdering his parents and was subsequently sentenced to two life sentences without the possibility of parole for 20 years.
The parents had mirror wills providing first for each other, and then for their son, as an alternative beneficiary. If their son were to predecease them (or otherwise lose his entitlement – as was the case), then the next alternative beneficiary was to be the son’s “issue then living in equal shares per stirpes.”
As the son did not yet have any issue, the judge’s dilemma was whether to wait for further distribution until he died, or to skip forward to the next named beneficiaries in the will. For a multitude of reasons, including public policy and the implied intention of the testators, the judge decided upon the latter option, which would result in an equal division of the residue of the estate among the deceased mother’s three brothers.
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I previously wrote about the upcoming changes to the Succession Law Reform Act, introducing a substantial compliance regime to the law of will drafting in Ontario. As of January 1, 2022, the new Section 21.1 of the SLRA will allow for a broader interpretation of the validity of wills drafted by a testator, if they are otherwise improperly executed, but sufficiently demonstrate the “testamentary intentions of a deceased.”
The result of this change in legislation could be the admission of diary entries or even loose-leaf documents as valid testamentary documents. I could even imagine a future where a Word document saved on a testator’s laptop or cloud server could qualify as a valid will, if no better document could be found.
The February 2020 Dalla Lana decision in Alberta is illustrative. Alberta already has a substantial compliance regime – as do many other provinces – and cases such as this could be relevant to resolving disputes in Ontario, after January 1, 2022.
In Dalla Lana, the deceased wrote changes to his previous will on two sticky notes, only four days before he died. He had previously executed a formal will in 1997, but his sticky notes of March 2018 were deemed to be not only valid changes to his will, but a complete and valid rewriting of his will.
The factors considered by the Judge in his decision included:
1) The testator was old enough (over 17) to make a will;
2) The testator had testamentary capacity;
3) The holograph will was “in writing”;
4) The holograph will featured his signature;
5) His signature indicated his “intention to give effect to the writing in the document as the testator’s will.”
It will be interesting to see if similar cases soon appear in Ontario, as substantial compliance takes effect in the New Year.
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Locating a Will after death can often be a challenge. Fortunately, the Law Society of Ontario (“LSO”) has resources that can assist with this task. The LSO maintains a resource page with advice on how to locate a Will. Some of the tips include:
- Contacting the lawyer or paralegal who may have prepared the Will directly. The LSO has a lawyer and paralegal directory that can assist by providing information about current lawyers and paralegals. (However, this route can only assist if the lawyer or paralegal who prepared the Will is known.)
- Search the court to see if the Will was deposited with the court. (However, experience tells us that very few Wills are deposited with the court.)
- Search Willcheck.ca or NoticeConnect to see if they have a record of the Will. The benefit of a search through NoticeConnect is that they can send a notice to their mailing list of lawyers and paralegals asking about knowledge of a particular Will.
- Contact the LSO. They may be able to assist in locating a Will prepared by a former lawyer or paralegal.
The LSO has prepared an infographic setting out steps that can be taken to locate a will.
As always, foresight is the best practice. After a Will has been drafted, it is always advisable for the testator to communicate with the named estate trustee(s) to advise them of the location of the Will. After all, there is little benefit to a careful estate plan if the Will cannot be readily located. Telling the estate trustee where this important document can be found can make the already difficult job of being an estate trustee a little easier.
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On Tuesday we discussed Grant Thornton LLP v. New Brunswick, 2021 SCC 31, and the new test for when a limitation period is triggered in New Brunswick under the Limitation of Actions Act (“LAA”).
The Requisite Degree of Knowledge
Thornton established that the new standard going forward for triggering the two-year limitation period requires that “the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. This approach… remains faithful to the common law rule of discoverability set out in Rafuse and accords with s. 5 of the LAA” (Para 42).
Actual or constructive knowledge is furthered described by the LAA. In addition, a plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence (para 44).
Plausible Inference of Liability
The final step that needs to be taken by the plaintiff is to “draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known” (para 45). This requires the degree of knowledge needed to discover a claim is higher than just mere suspicion or speculation. This is in line with the “principles underlying the discoverability rule, which recognize that it is unfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists” (para 46).
As previously mentioned, it is likely that going forward this new standard triggering the limitation period will apply in Ontario as well as other common law provinces going forward.
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Blended families – a family where some or all of the children in the family are not the natural or adopted children of both spouses – are becoming increasingly common. While most individuals are attuned to the emotional difficulties that could arise when blending two families, many might not consider the estate implications that arise upon blending. It is prudent to revise an estate plan upon blending families in order to ensure any children from a previous marriage are not inadvertently disinherited.
While many married individuals might hold assets jointly with their partner so as to minimize tax consequences upon death, this might not be wise when estate planning for a blended family. Additionally, implementing a “standard” Will, whereby upon death of the first spouse, all assets are left to the surviving spouse, could result in an unintended disinheritance of children from a previous marriage. For example, if the surviving spouse dies intestate, then their assets would pass to only their children, not their step-children.
One way to avoid the aforementioned situation would be to create a testamentary spousal trust. Under a testamentary spousal trust, a testator can provide for a spouse during their lifetime, while ensuring that the capital of the assets are preserved for children from a prior marriage or any other beneficiary the testator chooses to benefit.
Consider the following scenario:
Jack and Jane, two divorcees, are planning to get married. Both have children from their previous marriages. Jack wants to ensure that, in the case he dies first, Jane will benefit from the income generated from his assets, but that the capital will ultimately go to his children from his first marriage. Jane wants to ensure a similar outcome if she dies first.
In order to ensure that Jane is financially supported during the remainder of her life, Jack could set up a testamentary spousal trust in which Jane is paid all income from his capital assets. Generally, the trustee is given discretion to encroach on capital should he or she feel it is necessary. On Jane’s passing, the trustee would distribute Jack’s assets in accordance with the trust provisions (likely to his children from his first marriage).
Testamentary spousal trusts are not appropriate in all situations, so it is important that spouses in blended families carefully consider their estate planning options with an experienced lawyer and financial advisor.
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A question that is often asked by plaintiffs is, “when does the clock start ticking to bring my claim?”
In Ontario, there are with certain exceptions, two limitation periods for plaintiffs to bring their claim and the rule of discoverability. First, pursuant to section 4 of the Limitations Act, 2002, no claim shall be brought after two years from the day on which the claim was discovered.
The second limitation period, which is known as the ultimate limitation period, as per s. 15(1) bars claims from being made after the 15th anniversary of the day on which the act or omission took place.
In New Brunswick there are statutory limitations for bringing claims along with the doctrine of discoverability. First, pursuant to section 5(1)(a) of the New Brunswick Limitation of Actions Act (“LAA”), no claim shall be brought after two years from the day on which the claim was discovered. Second, according to section 5(1)(b), no claim shall be brought after fifteen years from the day on which the act or omission on which the claim is based occurred. Section 5(2) further states that a claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss, or damage had occurred, (b) that the injury, loss, or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant.
In the decision of Province of New Brunswick v. Grant Thornton, 2020 NBCA 18, the Court of Appeal of New Brunswick established the test for when a limitation period is triggered. They focused on the view that s. 5(1)(a) does not begin to tick until the plaintiff has discovered their claim. In their view, “the two-year limitation period begins to run the day after the plaintiff knows or ought reasonably to have known facts that confer a legally enforceable right to a remedy” (Para 7).
A year later, the Supreme Court of Canada came to a different conclusion in Grant Thornton LLP v. New Brunswick, 2021 SCC 31. Here, the Court enforced a new standard for when a plaintiff has the requisite degree of knowledge to discover a claim under section 5(2) of the LAA, which in turn affects the two-year limitation period under s. 5(1)(a). Going forward the standard to be enforced is whether “the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn” (Para 42).
Although Grant Thornton arose from legislation in New Brunswick, it is plausible the Court’s decision will have implications for how Ontario’s Limitations Act, 2002 and the discoverability doctrine will be interpreted going forward.
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