The Fraudulent Conveyances Act, RSO 1990, c F.29 (the “FCA”) is designed to prevent a debtor from hiding assets from creditors by fraudulently transferring the assets to a third party. If the FCA applies, the Court shall make the property that was fraudulently conveyed available for creditors of the transferor.
Based on the general description and purpose of the FCA, it would appear as though it is a means of redress for frustrated creditors, only. However, that is not the case.
In accordance with section 2 of the FCA, the Court is authorized to set aside transactions that are entered into with the intent to defeat an action (amongst other things), for the benefit of “creditors and others”. The specific wording of this section of the FCA is as follows:
“Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful action, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.”
Although the FCA does not define what is meant by “others”, it is clear that the statute specifically delineates “others” to signify that it is a group of entities that could otherwise not be defined as “creditors”.
The Ontario Court of Appeal in Hopkinson v Westerman (1919) 45 OLR 208, 48 DLR 597 (ONCA) defined “others” as those persons who, though not judgment creditors, had pending actions in which they were sure to recover damages.
Since then, the definition of “others” has been used in many cases, including in the family law context, such that, a spouse could qualify as a person who is intended to be protected from conveyances of property made with the intent to defeat his or her interest.
The court in Robins v Robins Estate  OTC 285, 121 ACWS (3d) 1104 (ONSC) held that a spouse who brought a claim against her husband’s Estate could not make a claim under the FCA.
The Court held that if the spouse was found to be a “creditor” it would have to be based on the Deceased’s obligation to support her as a spouse. The Court held that “[B]oth spouses have an obligation to support themselves and each other” and if the theory of the surviving spouse was accepted, spouses in a marriage would be in a “constant creditor-debtor relationship throughout cohabitation and marriage unable to alienate any property, the result of which may leave them unable to pay support at a later time.”
In deciding that the spouse in this matter was not a “creditor” the Court gave particular weight to the fact that the relationship was relatively short-term and that the spouse was able to support herself. In addition to that, the conveyance in question took place before the date of marriage, which reasonably made the surviving spouse’s argument that it was made with a fraudulent intent of defeating her support claim, all the more difficult.
In contrast, the Ontario Court of Appeal in Stone v Stone, 55 OR (3d) 491,  OTC 412 (ONCA), in interpreting the same obligation of spouses to support themselves and each other, found, in the context of an election under section 6 of the Family Law Act, following the Deceased’s death, that the FCA did apply. Particular weight was placed on the fact that the Deceased did know that his wife would survive him and was aware that the value of her assets was less than the value of his and that she would not accept her legacy under the Will.
The Court in Robins v Robins Estate found that the Stone v Stone decision was different because it addressed the claim of equalization of property rather than the issue of support under the Family Law Act. The Court further held that unlike the conveyance of property accumulated during a 24 year marriage in Stone v Stone, the case of Robins v Robins Estate addressed an asset owned by the Deceased before the cohabitation date and the marriage.
Of interest is the fact that the courts do not seem to significantly distinguish between the category of “creditors” and the category of “others”. Perhaps, if more of a difference is seen between the two, concerns regarding creating an overarching creditor-debtor relationship between spouses would not seem as significant.
The question remains whether the FCA category of “others” could extend to a spouse in the context of a claim as against an Estate? That remains to be seen, however, based on the assessment made by the courts in the two cases discussed, it very well could – it just depends on the factual circumstances.
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“People whose deaths are so close to each other (being caused by the same calamity) that it is not possible to determine who died first.” In other words, simultaneous deaths. In its adjectival form, the word is “commorient”, as in “commorient death”.
In Ontario, commorientes are addressed by Part IV of the Succession Law Reform Act. The impact of Part IV was addressed by Natalia Angelini in her blog, here.
Essentially, in Ontario, where two or more persons die at the same time or in circumstances rendering it uncertain which of them survived the other or others, the property of each person shall be disposed of as if he or she had survived the other or others.
This rule does not apply in all jurisdictions. In P.E.I., for example, pursuant to the Commorientes Act, where two or more persons die in circumstances rendering it uncertain which of them survived the other or others, the presumption is that the deaths occurred in the order of seniority, and accordingly, the younger shall be deemed to have survived the older. This would also apply to policies of insurance and jointly held property. There is an exception in the P.E.I. legislation, however, where a testator and a beneficiary under a will die at the same time or in circumstances rendering it uncertain as to which of them survived the other, and the will provides for a gift over if the beneficiary does not survive the testator. In those cases, the will is to be given effect as if the beneficiary had not survived the testator.
In Alberta, the legislation regarding the exception goes one step further: the presumed survivorship regardless of age applies where there is a will or statute that makes provision for a distribution operative if a person dies or before or at the same time as another person: ie, on an intestacy.
As an illustration of the effect of the different survivorship regimes, consider the case of Re Mandin (Estate), 1998 ABCA 165 (CanLII). There, a son killed his mother, stepfather and two sisters. The mother left a will leaving her estate to her children. In light of the murder, the son was precluded from inheriting. The court had to consider whether the estate passed on an intestacy to the children’s father (the deceased’s first husband), or to the deceased’s mother. The court held that the intestate legislation of Alberta contained gift-over provisions where the children predeceased the mother or died at the same time. The estate therefore passed to the deceased’s mother. The same result would occur in Ontario under Ontario’s survivorship legislation. In P.E.I., the likely outcome would be that the mother was deemed to predecease the children (being older than them), and therefore her estate would pass to the children upon her death, and then to their father upon their deaths, which are deemed to be immediately after their mother’s death.
In the U.S., many states have adopted the Uniform Simultaneous Death Act, which provides that persons who are each other’s heirs under a will or on an intestacy will be deemed to have predeceased the other if they die within 120 hours of one another, unless there is a specific clause in the will that deals with this eventuality. This avoids the issue trying to determine an order of death where deaths happened contemporaneously, and also the issue of having property pass through two estates, and the costs, taxes and delays associated with this result
Have a great weekend.
Testamentary freedom is a core tenet of estate planning in Ontario. In general, testators are at liberty to set up their estate plan to include or exclude whomever they wish. Where part or all of a testator’s estate plan fails as a result of an intestacy, Ontario’s Succession Law Reform Act (the “SLRA”) steps in to provide the parties who will benefit as a result. Occasionally, the principles of testamentary freedom and intention and the laws of intestacy intersect in peculiar ways. This intersection came to a head in the Eissmann v Kunz (2018 ONSC 3650) decision.
In Kunz, the testator, Siegfried Kunz, died leaving no fewer than four testamentary documents purporting to be wills, briefly summarized as follows:
- A will drawn in 1967, which divided Mr. Kunz’s estate between his wife and their daughter, Petra;
- A will drawn in 1982 in Mr. Kunz’s handwriting, which stated that the “beneficiary after [his] death is Petra”;
- A will drawn in 2000, again in Mr. Kunz’s handwriting, which purported to modify the 1967 will and listed a number of specific legacies to various beneficiaries. Mr. Kunz appears to have later written over the original bequests to increase the amount of each. Petra was once again listed as the sole residuary beneficiary; and
- A will drawn in 2009, also in Mr. Kunz’s handwriting, which provided that Petra would “not receive a single Euro of out [the] Estate.” In the margin of the 2009 will, Mr. Kunz expressly indicated that the 2009 will was to be an “amendment” to the 2000 will.
The Court was first tasked with determining which will was to govern. The Court concluded that the 2000 will was a valid holograph will, though noted that the subsequent handwritten amendments were of no force and effect as they did not comply with the formal requirements for valid alterations under the SLRA. The Court concluded that the 2009 will operated instead as a codicil to the 2000 will as it did not dispose of any property on its face and, therefore, could not function as a standalone will.
The interplay between the 2000 will and the 2009 codicil is such that a conflict arose with respect to the disposition of the residue of Mr. Kunz’s estate. The 2000 will names Petra as the sole residuary beneficiary. The 2009 will revokes Petra’s interest entirely. The 2009 codicil therefore created a partial intestacy with respect to the residue of Mr. Kunz’s estate, and the Court looked to the SLRA to determine who would inherit.
The hierarchy of beneficiaries on an intestacy is set out in Part II of the SLRA. Mr. Kunz died leaving no surviving spouse, and so the next intestate beneficiaries were to be his children, that is, Petra. In an ironic twist of fate, the Court concluded that Petra was solely entitled to all of the residue of Mr. Kunz’s estate, notwithstanding that he had intended to expressly disinherit her under the 2009 codicil. The Court declined to give effect to Mr. Kunz’s apparent intention to exclude Petra.
Simple estate planning steps, such as the appointment of an alternate beneficiary under the 2009 will, could have prevented this great irony. Ensure the effects of your testamentary dispositions are properly understood by taking time to review your will with a lawyer.
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I came across a blog recently, amustreadblog.com, written by Toronto sommelier Debbie Gordon. She has a lot of great insights about wine from Canada and around the world, and I enjoyed her profile of a man I’d never heard of – Anthony von Mandl – who heads up some of British Columbia’s leading wineries, including Mission Hill.
But before producing award-winning wines that have won honours around the world, Anthony gave the world a much humbler beverage that made him a fortune: Mike’s Hard Lemonade. I realized that there are a lot of different personalities in the wine world, and a lot of different paths to the top.
Then another blog entry caught my eye that reaffirmed the “different personalities” viewpoint – cannabis-infused wine.
Yes, a California winery, Rebel Coast, is marketing Marijuana Infused Sauvignon Blanc. California laws don’t allow alcohol and THC to mix, so the weed takes priority, with 16mg THC and 0.5% alcohol. As Gordon notes, “you may get high but you definitely won’t get drunk.”
I don’t know about you but as an Ontario resident, I’m still getting used to seeing bottles of beer in my local No Frills, let alone weed-infused wine. But as legalization of cannabis comes to Canada, we’re going to be seeing a lot of things that we’ve never seen before. Weed wine may be one of them.
So, what does it taste like? Gordon attended a tasting and gave this description.
“I think it’s fair to say the blend is aromatically unique from the Sauvignon Blanc I’m accustomed to. I smell citrus, hops and something else … Ragweed? It’s herbal. I tweet “grass” since I don’t want to offend. On the palate? I’m getting something akin to Mello Yello and aging asparagus. Also, higher acidity and rustic, savoury, herb-de-Provence flavours. “Notes of freshly picked pot,” the millennial to my right, knowingly adds.”
I don’t know about you, but I’ll likely be sticking to my inexpensive THC-free house wine.
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In a recent decision in Newfoundland and Labrador, three individuals in a polyamorous relationship were ruled to be the legal parents of a child (Re CC, 2018 NLSC 71). The trio consists of the biological mother of the child and two men, none of whom are married. Furthermore, by choice, none of the parties know which of the two men is the child’s biological father. The trio brought an application for a declaration recognizing all three as the child’s parents. The Court found that the statutory scheme in Newfoundland and Labrador regarding parentage had a gap as there was no recognition of the possibility of a child having more than two parents. The Court therefore exercised its parens patriae jurisdiction to issue a declaration that each man is the child’s father, with the result that all three parents are to be listed on the child’s birth certificate.
A moment to send some well-wishes to the officially recognized family!…And now on to the topic of their eventual deaths.
While the Court has recognized the parentage of all three members of the trio, it remains unclear how this will affect the intestacy rights of the child, should any of the fathers die without a will. Newfoundland and Labrador’s intestacy laws, like in other provinces, provide that the child of an intestate deceased person is to receive a share of the deceased’s estate. Section 2(2) of Newfoundland and Labrador’s Intestate Succession Act sets out that, for the purpose of determining intestacy rights, the relationship of parent and child is to be determined under the province’s Children’s Law Act or Adoption of Children Act.
In light of the Court’s finding that a statutory gap existed in the Children’s Law Act requiring the Court’s intervention in declaring both men to be fathers of the child, it is not clear what may happen on the death of the men in terms of potential intestacy rights of the child. The gap was such that, instead of issuing a declaration pursuant to the Children’s Law Act, the declaration was issued by relying on the Court’s parens patriae jurisdiction. While perhaps unlikely, this could potentially lead to a question of whether the child would be considered a child of both fathers for the purposes of the Intestate Succession Act. In issuing the declaration, the Court clearly intended for the declaration to provide the child the same rights as any other child when the Court stated that “to deny the recognition of fatherhood (parentage) by the Applicants would deprive the child of having a legal paternal heritage with all the rights and privileges associated with that designation.” In all likelihood, given the declaration of parentage, the child will inherit on the intestacy of any of the three. However, given the uncertainty of these newly recognized parental relationships and the possibility of future challenges by disgruntled family members (for example, other potential biological children or siblings of a deceased), parents in these types of situations should carefully consider their estate planning needs to best protect their family.
For more on this type of situation in Ontario, read our blog on the Ontario Court of Appeal decision in AA v BB.
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When is it Appropriate to Extend the Time Granted in Favour of Equalization under the Family Law Act?
Applications for an extension of time (beyond six months from date of death) to elect under the Family Law Act (“FLA”) are regularly brought before the Court. Decisions with respect to that are often dealt with by way of short endorsements.
Justice Dunphy, in Aquilina v Aquilina, 2018 ONSC 3607, a recent court decision, made some interesting comments regarding applications for an extension of time in such circumstances.
The Deceased passed away in December, 2017, leaving the Applicant (his wife) and their three adult children. The Applicant was primarily a homemaker and as such, her level of information regarding the family financial affairs was imprecise. The Estate was not a simple one to administer, in part due to a number of business interests the Deceased had in the family’s native country, Malta, held through various corporations, real estate holdings and an active business.
At the time of the hearing, the Estate did not have an administrator. It was determined that the Deceased did not leave a Will.
The Applicant in this matter had two options – making a claim under the Succession Law Reform Act (“SLRA”) or the FLA.
Under the SLRA, in the event of an intestacy, the beneficiaries of the Deceased’s estate are the Applicant and their three adult children. Under s. 46(2) of the SLRA, where there is no Will and there is more than one child of the Deceased, the surviving spouse is entitled to 1/3 of the Estate plus the “preferential share” prescribed by s. 45 of the SLRA.
In contrast, s. 5(2) of the FLA provides that the surviving spouse will receive 1/2 of the difference between the value of the net family property of each of the spouses where the Deceased had the higher of the two amounts.
The Applicant has a period of six months from the date of death to make the election as per s. 6(10) of the FLA. Absent an election, the surviving spouse takes under the SLRA.
Criteria for Extension
The Applicant requested that the court: (i) extend the time to make an election until two years from the date of the application; (ii) extend the time for the deemed election to the same date; and (iii) extend the time during which distributions from the Estate are suspended until the same date.
In making a finding, the Court must consider:
- Whether there are apparent grounds for relief;
- Whether delay, if any, was incurred in good faith; and
- Whether anyone will be substantially prejudiced by the delay.
It is important to note, that the surviving spouse does not have to have precise and accurate information but that he or she must have sufficient information to make an informed choice. Justice Dunphy noted that extensions are intended to be the exception and not the rule.
Analysis and Decision
Justice Dunphy held that it was going to take a period of time – very likely a year or more – to be able to gather the facts necessary to understand the value of this Estate and the Applicant’s intersecting interests within (meaning the consequences flowing from her different roles as a shareholder, widow and spouse). Therefore, Justice Dunphy held that there are some grounds for relief in the circumstances of this case.
In considering whether there was any delay that was not incurred in good faith, though Justice Dunphy noted that the Application was brought very close to the six month anniversary of the Deceased’s date of death, he placed weight on the fact that the death was “sudden, unexpected and shocking” and the relative complexity of the Estate. He held that the delay was incurred in good faith.
Justice Dunphy found that there would be no substantial prejudice in this case if an election was granted because the only other beneficiaries of the Estate are the three adult children of the Deceased and the Applicant, who confirmed that they did not oppose the motion. He did balance against that finding, however, the inherent prejudice in having all or a substantial portion of the Estate frozen. In making this consideration, Justice Dunphy found that any prejudice in this matter was slight.
Based on the facts, Justice Dunphy held that more time would be required to consider the rights of the Applicant, as the surviving spouse, under the SLRA as compared to the FLA. As such, he granted the Applicant all the relief sought, but reduced it to one year from the date of the Application instead of the two years that the Applicant was seeking.
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This question is addressed in the June 8, 2018 decision of Justice Nishikawa in Galsan Holdings Inc. v. Davalnat Holdings Inc., 2018 ONSC 3600 (CanLII).
There, a corporation, Seabrook Properties Inc. (“Seabrook”), owned a commercial property (actually, the application involved two different corporations owning two different properties, but each property was addressed on the same basis). For sake of simplicity, I will only discuss one of the properties). The corporation was owned by Galsan Holdings Inc. (“Galsan”), as to 50%, and Davalnat Holdings Inc. (“Davalnat”), as to the other 50%. Galsan was, in turn, wholly owned by a Mr. Gallo, and Davalnat was wholly owned by a Mr. Calvano. Gallo and Calvano were the officers and directors of Seabrook.
The business relationship between Gallo and Calvano broke down, and Gallo and his company Galan brought an application for partition and sale.
The application was dismissed. The court held that Gallo and Galsan did not have the requisite standing to bring the Application. Under s. 2 of the Partition Act,
All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by curtesy, mortgagees or other creditors having liens on, and all other parties interested in, to or out of, any land in Ontario may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
In considering the section, the court applied an Ontario Court of Appeal decision, Greenbanktree Power Corp. v. Coinamatic Canada Inc., which held that a person with “an interest in the land” has a prima facie right to compel partition or sale. Only a person or corporation “entitled to the immediate possession of an estate in property” may bring an action or make an application for its partition or sale.
In the case before the court, the property was owned by Seabrook. The shareholders, Galsan and Davalnat, did not have a possessory interest in the property. The shareholder of Galsan, Mr. Gallo, was “a further step removed” from the property, and similarly had no prima facie right to partition.
There was no suggestion that Seabrook was holding the property as a bare trustee. If the property was owned by a corporation as a bare trustee, the beneficiaries may be considered to have an interest in the land, and may be entitled to compel a partition or sale.
Although the application was dismissed, it is not that the parties are without a remedy. Gallo and Galsan had also commenced an oppression remedy proceeding, seeking a winding up of Seabrook. This proceeding continued.
For another discussion of partition or sale proceedings see my blog, here.
Have a great weekend.
On a recent trip to Rochester, New York, my fiancée and I had the pleasure of touring the George Eastman Museum and came across an interesting piece of estates lore.
George Eastman, the founder of Kodak and a pioneer of bringing photography to the mainstream, died leaving a Will drawn in 1925. As his wife had predeceased him and they had no children, Mr. Eastman devised all of his real property and left a substantial cash legacy to his closest family member, his niece, Ellen Dryden. Mr. Eastman’s estate held significant assets, and the value of liquid assets alone was estimated as exceeding the equivalent of USD$35 million today.
However, on March 9, 1932, only five days before his death, Mr. Eastman had a change of heart with respect to the distribution of his estate. Rather than leave the bulk of his estate to an individual, Mr. Eastman wished to ensure that his legacy would be one of service to the community that had fostered his photography empire. True to form as a philanthropist and benefactor of local enterprise, Mr. Eastman executed a Codicil to his Will, changing the primary beneficiary of his estate from his niece to the University of Rochester.
The testamentary dispositions under the Codicil represented a significant deviation from those under his Will. Typically, where a testator’s dispositions vary substantially from one instrument to another, concerns may arise with respect to the their testamentary capacity or the presence of undue influence.
A shrewd entrepreneur in his own right, Mr. Eastman recognized the risk that the Codicil might later be the subject of scrutiny or litigation. On the date the Codicil was to be executed, Mr. Eastman hosted a gathering at his residence and invited many guests and acquaintances. He devoted time to speaking to each individual guest about topical, personal subjects so that they could attest to Mr. Eastman’s soundness of mind in the event that a certain disgruntled niece chose to commence a Will challenge.
In a way, Mr. Eastman’s goal is not too dissimilar from some of the criteria that are relied on even today to assess a testator’s capacity. Third-party evidence that a testator appeared to be of sound mind immediately prior to the execution of a testamentary document may help a trier of fact draw a favourable conclusion with respect to capacity. While the formal criteria to assess capacity primarily consider a testator’s appreciation and understanding of his or her assets, Mr. Eastman’s clever scheme demonstrates that he turned his mind to questions about his own capacity and took steps to mitigate the risks.
Mr. Eastman’s Codicil was not later subject to any litigation, and the University of Rochester received a handsome distribution out of his estate.
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If you live in southern Ontario, you saw it first hand – a “build a snowman” April that had us shaking our heads at the calendar.
We always expect some chilly, wet weather that softens the earth and eventually gets things growing. But we didn’t expect to be hit mid-month with a snow and ice storm. It wasn’t nearly as bad as the devasting ice storm of a few years ago, but it still knocked out power to many, brought down trees, and resulted in the cancellation of many events, including a Toronto Blue Jay home game when falling ice smashed a hole in the stadium roof.
And yes, the weather is indeed getting worse. According to Canadian Underwriter, the annual insured losses from large severe weather events have increased from an average of $400 million in the 1980s to almost $1 billion this decade. In 2013 alone, there were reported losses of $3.2 billion due to the Alberta floods and Toronto rainstorms.
It’s not only Canada of course – extreme weather events are increasing worldwide. Which got me to thinking: where are the safe havens in the world with the lowest risks of tornadoes, hurricanes, earthquakes, tsunamis, and other violent storms?
It sure isn’t California. According to the U.S. Geological Survey, there’s a 60% chance of a 6.7 magnitude earthquake hitting Los Angeles in the next 30 years, and that probability rises to 72% for San Francisco.
For safety, we need to look further afield. While there’s no definitive pronouncement on the world’s safest countries, there are several countries that often showed up on Top 10 lists. These include countries such as:
- Saudi Arabia
For a great overview of the worst and best places to live from a natural disaster standpoint, this article from The Telegraph provides data from the 2015 World Risk Report from the United Nations University. It seems that I might be spending less time in the Philippines (3rd worst) and Costa Rica (7th worst) and more time in Barbados (3rd best) and Sweden (10th best). Fingers crossed!
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In today’s podcast, Jonathon Kappy and Kira Domratchev discuss the British Columbia Court of Appeal decision of Killam v Killam (2018) BCCA 64, and the “four corners” approach versus the “armchair” approach in interpreting the testator’s intention.
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