22 Aug

Never Really Lost but Recently Discovered

Doreen So Estate & Trust, General Interest, In the News, Wills Tags: , , , 0 Comments

Thanks to the New York Times, I found out about where most of Bob Ross’s paintings have been kept all these years.  Bob Ross was the iconic host of the television show, The Joy of Painting.  The PBS show ran from 1983 to 1994 and these old episodes continue to be watched on television, YouTube, and Netflix today.

In each episode, Bob taught his audience how to paint landscapes from his own imagination and memories.  According to this NYT video, Bob would paint three versions of the same painting for each episode.  Given the amount of episodes, Bob is estimated to have painted over a thousand paintings for the show alone.

Bob’s paintings are owned by a company known as Bob Ross, Inc.  Bob Ross, Inc. was originally owned by Bob, his wife, Jane, and Annette and Walt Kowalski.  The Kowalskis are credited with discovering Bob and financing his early career.  When Bob died in 1995, predeceased by his wife Jane, the Ross’s shares of the company were left to the Kowalskis.

To date, Bob Ross, Inc. does not sell Bob’s paintings.  It is a company that sells painting supplies, books and dvds, and other fun items like t-shirts and coffee mugs.

As a privately held corporation, Bob Ross Inc. can continue to hold onto Bob’s paintings for the foreseeable future.  Only time will tell if the shareholders of Bob Ross Inc. might change their minds about Bob’s paintings.  For now, the company has donated a collection of Bob’s paintings to the Smithsonian and the rest of us will just have to paint our own paintings by learning from Bob.

Just for fun, and to finish off my theme for the week, here is a video for happy little Bob Ross waffles.

Doreen So

Golden Fall Foliage Autumn Yellow Maple Tree Season

21 Aug

It’s easier than ever to get small

Suzana Popovic-Montag Estate & Trust, Estate Litigation, Estate Planning Tags: , 0 Comments

Comedian Steve Martin’s 1977 “Let’s Get Small” album foreshadows a lot of what’s been happening in our world recently.

While Martin used the phrase “let’s get small” literally (you take a drug and shrink, rather than “get high”), our world is getting smaller in other ways, only with technology, not drugs.

Our shrinking footprint

Think of the ways that technology has shrunk our world. How many paper files do we need today? How many books? A friend toured the “new look” U of T law school recently and couldn’t believe how small and sparse the offices were for professors. The reason? You don’t need space for shelves full of books and papers anymore.

Look at the trend in condominiums – smaller, smarter, more efficient. We simply don’t need (or value) as much “stuff” – china plates, workrooms, desk space, huge freezers. I cleaned out a small office in our home recently, and took to recycling a satellite receiver, a printer, an old laptop, a DVD player and more cords than you could imagine. I hadn’t used most of it in years, and seeing the clean empty space in the office was extremely satisfying. Less is more sometimes.

A timely trend

With all of the concerns about environment footprints, the fact that we can “get small” much easier today than in the past is a huge positive. We can build laneway housing, take Ubers or use auto shares instead of owning a car – and we don’t need to print mountains of paper when electronic files are faster, simpler and far more desirable. Much of our life truly “lives” on the phone in our front or back pocket. And that doesn’t take up much space.

I’m not recommending a “get small” theme for environmental reasons though (that’s an added bonus). I’m recommending it because it can lead to a simpler and more satisfying life. Instead of thinking “what can I get”, the focus becomes “what can I get rid of.” It doesn’t have to be extreme. Every so often, you eliminate one thing you plug in, or gas up, or store away. Bigger steps might include downsizing a home or going from two cars to one.

This article in Forbes.com – Ten Hacks for Simplifying Your Life – suggests going beyond the downsizing of possessions to include downsizing toxic people in your life, onerous debt, and personal grudges, amongst other things.

Give the article a read – and consider what getting small could mean for your life.

Have a great day, and thanks for reading.
Suzana Popovic-Montag 

20 Aug

Parties to Bear Their Own Costs of a Contested Guardianship

Doreen So Capacity, Continuing Legal Education, Elder Law, General Interest, Guardianship, In the News Tags: , , , , 0 Comments

There was a recent decision of the Ontario Superior Court of Justice on the issue of costs in a contested guardianship proceeding.  Rather unusually, the endorsement in Howard Johnson v. Howard, 2019 ONSC 4643, dealt with the issue of costs after the parties have resolved the main dispute on consent.

In this case, there were two competing guardianship applications over Elizabeth.  The applicants on the one hand were Elizabeth’s daughter and son, Marjorie and Griffin, and on the other hand, Elizabeth’s other son, Jon.  All three of Elizabeth’s children were of the view that their mother was in need of a substitute decision maker for both the management of her property and for personal care.

While the endorsement does not specify who the competing applicants were seeking to appoint as Elizabeth’s guardian, the parties eventually settled on the appointment of CIBC Trust Corporation as Elizabeth’s guardian of property and all three children as Elizabeth’s guardians of personal care.  On the issue of costs, Marjorie and Griffin sought full indemnity costs from Jon while Jon sought substantial indemnity costs from Majorie and Griffin or, in any event, that he be indemnified by Elizabeth for any amounts not recovered from his siblings.

Pursuant to section 3 of the Substitute Decisions Act, 1992, Elizabeth was represented by counsel throughout the proceeding and on the issue of costs.  Submissions were made on Elizabeth’s behalf that she should not have to pay costs of the other parties or the outstanding balance of an invoice that was purportedly incurred by Elizabeth in a joint retainer with Jon.

The Court in this instance considered the modern approach to costs in estate litigation as set out in McDougald Estate v. Gooderham,  2005 CanLII 21091 (ON CA), with respect to Jon’s claim that Elizabeth ought to be responsible, at least in part, for his costs.  The court relied on D.M. Brown J.’s (as he was then) comments that the discipline imposed by the “loser-pays” approach to estate litigation applies with equal force to matters involving incapable persons citing Fiacco v. Lombardi, 2009 CanLII 46170 (ON SC).  Only costs incurred for the best interests of the incapable person could be justified as costs payable from the incapable’s assets.

In this case, the competing applications of the siblings were found to contain a number of ancillary issues beyond that of the appointment of a substitute decision maker for Elizabeth.  The Court was ultimately unable to see how Elizabeth would have derived any benefit from her children’s disputes.  Therefore, the children were all ordered to bear their own costs.  There was also no clear benefit to Elizabeth from the invoice that was issued to her prior to the appointment of section 3 counsel and Jon was ultimately left to pay that balance.

At the end of the day, the only costs borne by Elizabeth, as the incapable person subject to two competing guardianship applications, were the costs of section 3 counsel pursuant to the section 3(2) of the SDA.

Here is a Bon Appetit recipe for a frozen margarita pie that we could all benefit from.

Doreen So

19 Aug

The Death of a Limited Partner

Doreen So Continuing Legal Education, Estate Planning, Executors and Trustees, General Interest, Litigation Tags: , , , , 0 Comments

Earlier this year, the Ontario Court of Appeal considered the issue of an estate’s entitlement to the residual assets of a partnership upon the death of its sole limited partner.

Canadian Home Publishers Inc. v. Parker, 2019 ONCA 314, is a lawsuit between the general partner and the Estate Trustees of the deceased limited partner, David.  Canadian Home Publishers Inc. was incorporated when Lynda and David decided to purchase Canadian House and Home magazine in 1985.  Lynda and David were married at the time.  The corporation was owned by Lynda as the sole general partner and by David as the sole limited partner.  It was their intention that Lynda would run the company as her own business and David would make use of its tax losses.

The couple later divorced in 1991.  Litigation ensued and there was a previous decision about the nature of the parties’ oral partnership agreement in the ’90s.  David dies in 2012.  By the time of his death, David had received over $26 million from his interest as the limited partner.  The magazine itself was valued at over $50 million.  Lynda, as the general partner, sought a declaration that 1) the limited partnership was dissolved upon David’s death, and 2) that David’s Estate was only entitled to a share of the profits to the date of his death and a repayment of his remaining capital contribution (i.e. that the Estate was not entitled to share in the residual value of Canadian Home Publishers).

The lower court found that 1) the limited partnership was indeed dissolved upon David’s death and 2) that David’s Estate was entitled to an equal share of the residual value of Canadian Home Publishers with Lynda.  While the Court of Appeal upheld the finding that the limited partnership was dissolved on death, the second finding was overturned and the Estate was limited from any additional benefit over above its share in profits as of the date of death and a return of capital.

The Court’s analysis provides a helpful description of the differences between limited partnerships and ordinary partnerships.  A limited partner is meant to be a passive investor whose exposure to liability is limited to the extent of his or her capital contribution unless otherwise provided in the Limited Partnerships Act (see paras. 20-21).  A limited partner has no broader right to participate in the upside of the limited partnership, just as the limited partner has no broader obligation to suffer or contribute in the downside (para. 25).

Since we are talking about House & Home, here is a recipe from their website for pineapple honey ribs 🙂

Thanks for reading and until next time!

Doreen So

16 Aug

One Expensive Tree!

Paul Emile Trudelle Estate & Trust, Estate Litigation, Estate Planning, Uncategorized Tags: , , 0 Comments

“What could be more Canadian than Toronto neighbours arguing about building an addition on a house? Home owners arguing about a maple tree, of course.”

And so begins the saga of Allen v. MacDougall, 2019 ONSC 1939, a decision of Justice Morgan.

There, the Allens wanted to build an extension to their Moore Park home. To do so, they wanted to remove a tree that was on the property line between their property and their neighbours, the MacDougalls.

The Allens had obtained municipal permits to cut down the tree. However, as the court noted, the permits were necessary as a matter of regulatory compliance: they did not reflect any adjudication of property rights.

The MacDougalls argued that as the tree was on the boundary line between the properties, it was the common property of both adjoining owners. This was confirmed by The Forestry Act.

The Allens countered with an assertion that the tree constituted a “nuisance”, and therefore should be removed. “The law of nuisance seeks to balance the competing rights of owners – one neighbour to do what he wants and the right of the other neighbour not to be interfered with”.

The court held that although the tree was interfering with the proposed addition, it was not interfering with the Allens’ current use and enjoyment of the property. Further, the court found that no reasonable alternative to destroying the tree was explored. The application for an order authorizing the destruction of the tree was dismissed.

On the issue of costs, reported here, the Allens were ordered to pay the MacDougalls $77,000 in costs. This was based on partial indemnity costs up to the time of an offer to settle by the MacDougalls, and substantial indemnity costs from the time of the offer.

So, it appears, the tree still stands. However, I expect that the neighbourly relations between the parties have been clear-cut.

To read about one expensive dock, see my blog, here.

Have a great weekend.
Paul Trudelle

15 Aug

Electronic Devices at Borders – Some Progress?

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

When we last blogged here on the issue of electronic devices at borders, a Toronto lawyer, Nick Wright, had had his phone and laptop seized by custom officials after he refused to provide password access because solicitor-client privileged information was on the devices.

The authority under which such searches are taking place is the Customs Act, by which courts have previously interpreted “goods” as including cellphones. However, the case law is dated, and there has yet to be a constitutional ruling on the issue.

This may soon change, as Mr. Wright has, together with another lawyer, taken the matter further by applying to the Federal Court seeking a result that would reportedly include declarations that (i) searches on electronic devices without probable cause or search warrant are a breach of the Canadian Charter of Rights and Freedoms, and (ii) searching lawyer-client privileged material similarly constitutes a Charter breach.

The significance of the issue is stressed in the following reported statement of Mr. Wright:

“Solicitor-client privilege is . . . of the utmost importance in the free and democratic society and a fundamental principle of justice, and it’s for the benefit of clients, so individuals,” he says. “In an adversarial system like we have, it’s important that the public be able to consult with their lawyers, in order to participate in the legal process and to have the federal government thieving solicitor-client privilege information undermines our legal system and undermines the adversarial process.”

Until the case is determined, lawyers should assume that information covered by solicitor-client privilege is not protected from search at a border. Accordingly, further to the suggestion of the Canadian Bar Association, using cloud technology and erasing all privileged information from devices is the safest course of action.

We will be keeping an eye on this litigation, and hope to see an updated and meaningful pronouncement on the issue of a reasonable expectation of privacy for lawyers at the border.

Thanks for reading,
Natalia Angelini

14 Aug

Squash or breakdancing at the Olympics – which would you choose?

Ian Hull Uncategorized Tags: , , , , 0 Comments

The Olympics seemed a lot simpler when Montreal hosted the summer games in 1976. Yes, there were some bizarre sports that seemed better suited to ancient Greece (hammer throw anyone?). But at least these bizarre sports were ones we knew well from previous games – and we were very familiar with most of the other stuff (like cycling, rowing, swimming, and running).

Times have changed

While many sports have been added and dropped from the modern Olympic games over the years, some new additions for 2020 certainly catch the eye – namely sport climbing, surfing, and skateboarding.

All of these sports have been added to the exclusion of a sport – played by 20 million people worldwide – that has been working to be recognized as an Olympic sport for decades: squash.

The most recent pitch by the World Squash Federation was for squash to be included in the 2024 games in Tokyo – and it was confident that it had met all the criteria. But in February, the International Olympic Committee chose another sport to be added instead of squash: breakdancing.

Bye-bye squash

You can read about the reaction of the squash community here. In short, they were stunned. Millions play the game, television coverage has increased, and it’s recognized as one of the most demanding sports to play.

But Olympic organizers have stated that their agenda is more youth-focused and more urban, which is why skateboarding and breakdancing are in and squash is out.

On the one hand, I get it. Squash has an elitist history (there was a squash court on the Titanic, available to first class passengers) and it’s mostly played in expensive clubs. Breakdancing and skateboarding are available to all, for next to nothing in cost. And they are fun to watch too.

On the other hand, if the Olympics continues to include even more elitist sports like equestrian, it seems unfair to exclude an individual sport that has a storied history, gender balance, and active youth programs worldwide.

I look forward to watching the skateboarding and breakdancing competitions in coming Olympic games. Don’t get me wrong. But I’ll shed a tear for a sport I think deserves a place on the podium as well.

Now, if we could just get rid of that hammer throw…

Thanks for reading!
Ian M. Hull

13 Aug

Hull on Estates #578 – Grewal v Litt: The Issue of Testamentary Freedom and Potential Discrimination

76admin Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, Uncategorized Tags: , , , 0 Comments

In today’s podcast, Jonathon Kappy and Sayuri Kagami discuss Grewal v Litt, 2019 BCSC 1154, a recent case out of BC where 4 sisters sought to have the court vary their parents wills that left almost 96% of the parents’ estates to the applicants’ 2 brothers. The applicants claimed that the parents failed to make adequate provision for their proper maintenance and support as a result of cultural discrimination that favoured sons over daughters.

If you’d like to read more about the case, see Garrett Horrock’s recent blog here.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy.

Click here for more information on Sayuri Kagami.

13 Aug

Severing a Joint Tenancy – A Loosening of the “Course of Dealing” Rule?

Natalia R. Angelini Estate & Trust, Estate Litigation, Estate Planning, Support After Death, Trustees, Uncategorized, Wills Tags: 0 Comments

There are three ways in which a joint tenancy may be severed (Hansen Estate v. Hansen):

  1. Unilaterally acting on one’s own share (e.g. selling or encumbering it).
  2. A mutual agreement between the co-owners.
  3. Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

In Marley v. Salga, the Court addressed the third manner in which to sever joint title – by course of dealing. In this case, there were competing applications brought by Ms. Marley, the deceased’s widow, on the one hand, seeking sole legal and beneficial ownership of the matrimonial home, and by the deceased’s children from a prior marriage, on the other hand, seeking an order that the estate is entitled to a half interest in the property as a tenant-in-common.

The Court declared that the estate was entitled to a half-interest in the property as a tenant in common. The evidence considered to determine the issue included a deathbed conversation between deceased and Ms. Marley, in which Ms. Marley acknowledged the deceased’s wish to divide the property 50:50 between his children and Ms. Marley. The Court seemed to place great weight on this evidence, finding that the deceased and Ms. Marley “were in agreement as to how the property should be handled on his death.” One commentator criticizes the Court for accepting that Ms. Marley was prepared to compromise her property rights “…on the basis of soothing words spoken to her husband on his deathbed without fully understanding her rights, without the benefit of any advice as to the consequences that would result to her and without any compensation or consideration for the loss of those rights.”

Another consideration for the Court was the language of the deceased’s Will, which allows Ms. Marley to occupy the deceased’s half of the property on certain terms, purports to terminate her rights in certain circumstances, and provides for the sale of the property. The Will’s language assisted in swaying the Court, as the Court treated it as a piece of evidence used to discern if there was a common intention, and it inferred that the provision in the Will was known to Ms. Marley. This rationale has been the subject of debate as (i) a testamentary disposition cannot sever a  joint tenancy and should not be relied upon as evidence of a mutual intent, and (ii) there does not seem to have been evidence of both spouses taking steps showing a mutual treatment of their co-ownership as a tenancy in common.

If appealed, we may get some helpful clarification on this important issue.

Thanks for reading,

Natalia Angelini

12 Aug

Dependant Support and Repudiation of the Spousal Relationship

Natalia R. Angelini Common Law Spouses, Estate Litigation, Power of Attorney Tags: , 0 Comments

In dependant support cases, the court shall consider many factors and circumstances in determining the amount and duration of support, pursuant to a non-exhaustive list detailed in section 62 of the Succession Law Reform Act. If the dependant is a spouse, the considerations also include a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. In Webb v. Belway, we see this consideration taking center stage.

The Facts

The deceased, Mr. Belway, suffered a stroke. He died approximately six months later at age 82.  In the months prior to his passing, Mr. Belway was in the hospital and in long-term care. Ms. Webb assisted in in his care, and was acting as Mr. Belway’s attorney for property and personal care.

Mr. Belway died intestate. He was survived by his daughter, who stood to inherit the entire estate of almost $3.0 million. He was also survived by his long-time common-law spouse, Ms. Webb, age 73. Ms. Webb brought a dependant support claim seeking half of the estate.

Mr. Belway’s daughter opposed the application, arguing that due to Ms. Webb’s abhorrent behaviour she should not be entitled to any assets from the estate. Such behaviour included:

  • Webb, acting as attorney for property, transferring more than $570,000 from Mr. Belway’s accounts for her own benefit, when Mr. Belway was hospitalized and incapable;
  • Webb did not call Mr. Belway’s daughter to advise of her father’s stroke, of his hospitalization or of his having undergone surgery. She further refused to provide a phone number to reach Mr. Belway; and
  • Webb took active steps to isolate Mr. Belway during his final months of life, including instructing caregivers to call the police should his daughter and family members attempt to visit.

The Decision

The court ultimately found that Ms. Webb’s actions were “improper” but that all things considered she should still receive support, stating:

“Ultimately, I am not persuaded that Ms. Webb’s actions were egregious or malicious, nor do I find her actions to have been so unconscionable as to constitute an obvious and gross repudiation of the relationship.

Moreover, after being a common law couple for at least 18 years, though Ms. Webb’s actions are problematic, I do not find they negate her moral and economic claims against the estate.”

This decision suggests that one may need a greater strength and breadth of evidence to establish a course of conduct sufficient to repudiate the relationship, particularly in a long-term spousal relationship that substantially appears to be fairly typical (at least, in this case, until the pivotal health crisis late in life).

Thanks for reading,

Natalia Angelini

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