Category: Public Policy
On April 30, 2021, the Long-Term Care Covid-19 Commission (the “Commission“) released its Final Report to the Minister of Long-Term Care. This report pulled back the curtain on the dreadful conditions that residents of certain long-term care homes in Ontario have endured during the coronavirus pandemic. It also made recommendations to the Ontario government with respect to improving quality of care for the long-term care resident population. You can read more about the Commission’s report in Ian Hull and Tori Joseph’s recent blog.
It seems that the Ontario government is heeding the Commission’s call to action. On May 31, 2021, Ontario announced that all long-term care homes in the province will be required to put into place certain COVID-19 vaccine policies for staff. The focus of these policies will be on educating long-term care staff about COVID-19 vaccines and promoting full immunization among staff.
The requirements related to the establishment, implementation and reporting on a COVID-19 immunization policy in long-term care homes are set out in the Minister’s Directive: Long-term care home COVID-19 immunization policy (the “Directive“). The objectives of the Directive are to establish a consistent approach to COVID-19 immunization policies in long-term care homes, optimize COVID-19 immunization rates in homes, and ensure that staff make informed decisions about COVID-19 vaccination. To meet these objectives, the Directive provides that every person working in a long-term care home in Ontario will be required to do one of the following:
- Provide proof of vaccination of each dose;
- Provide a documented medical reason for not being vaccinated; or
- Participate in an educational program about the benefits of vaccination and the risks of not being vaccinated.
The Directive is effective as of July 1, 2021, which means that long-term care homes have approximately one month to implement their COVID-19 staff immunization policies.
It is worth noting that Ontario is the first province in Canada to make it mandatory for long-term care homes to have COVID-19 immunization policies for staff and to set out the minimum requirements that need to be included in these policies. Hopefully this will be an effective step towards better protecting the health and well-being of long-term care home residents.
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When Covid-19 swept across Canada in March of 2020, it proved to be a virus that does not discriminate between young and old or rich and poor. However, this virus took particular hold of our long-term care homes. In doing so, Covid-19 shed a glaring light on an already broken system. It exposed a deep-rooted and systemic problem. It revealed chronically understaffed homes with overworked caregivers, painfully lonely residents, and the innate need for social connection. It is amidst this bleak backdrop that advocates at Advantage Ontario have urged the provincial government to support more “Seniors’ Campuses of Care” (“Seniors’ Campuses”) across the province.
Seniors’ Campuses provide a range of housing options in a community-like setting, including: assisted living, affordable housing, retirement homes, and life leases. Seniors’ Campuses offer residents a variety of social programs as well as health supports. This model also offers elders continuity of care which, in turn, provides for a more stable environment and one that is conducive to developing deep relationships with fellow members of the community. As Jane Sinclair, Chair of the AdvantAge Ontario Board of Directors, stated, “they [Seniors’ Campuses]…are vibrant, age-friendly communities that promote friendships, social inclusion, mutual support, and positive aging.” Seniors’ Campuses give residents agency over their lives.
Not only do Seniors’ Campuses offer a vast array of benefits to their members, but the model also offers the government a cost-effective way to reduce the pressure on an already overwhelmed long-term care system. Members pay monthly fees to live on Seniors’ Campuses, which vary depending on the housing model they choose to reside in. Members are able to move from one model of housing to the next as their needs change. For example, if an individual was residing in an affordable housing unit and experienced a health deterioration, he/she could be transferred to assisted living. This integrated approach provides seniors with appropriate care and enables them to remain in the community and avoid unnecessary placement in long-term care homes for as long as possible. It is a model that encourages independence and allows seniors to maintain their dignity.
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Suzana Popovic-Montag and Tori Joseph
We have previously blogged on the discussion between Ontario Attorney General, Doug Downey, and the Estates Bar regarding legal policy reform. This discussion occurred on August 6, 2020, and was facilitated by the Ontario Bar Association. Our post focused on virtual witnessing of wills as a result of Covid-19 and considered the possibility of making this provision more permanent.
The focal point of today’s post will be s. 16 of Ontario’s Succession Law Reform Act and whether it should be repealed.
Section 16 provides for the revocation of a will upon marriage. At the August 2020 meeting, many participants were in favour of repealing this provision. Both British Columbia and Alberta have already amended their legislation to repeal this exact provision. Proponents of legislative change associate this provision with the rise in predatory marriages. The devastating consequences resulting from a predatory marriage generally impact the vulnerable elderly and their heirs.
The rationale underlying the provision’s enactment dates back hundreds of years to a time where the father of the bride was required to pay a dowry to the groom. Revocation of a prior will was required in order to protect the bride from any previous obligations laid out in the groom’s will and to ensure a “clean slate.” There are concerns by some that a new spouse might not be protected if a prior will remains valid after marriage. For example, if a valid will is upheld at marriage, a current spouse might not inherit if he/she is not included in that will.
Section 16 is debatably antiquated and historically redundant as there are now additional statutes in place to protect a new spouse in the event of a death, including the Family Law Act. Furthermore, s. 58 of the Succession Law Reform Act allows a spouse of a deceased to claim appropriate and adequate support as a dependant. It is apparent that revoking a will upon marriage is not the only protection available for a subsequent spouse.
With the demographics in our society rapidly changing and the obvious need to protect those most vulnerable, now is as good a time as ever to reconsider the necessity of s. 16.
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Suzana Popovic-Montag & Tori Joseph
Previously, I blogged on Medical Assistance in Dying (MAID) and the changes to the Criminal Code proposed by Bill C-7, which sought to provide for assisted deaths where a natural death is not “reasonably foreseeable”. The changes would have included the potential to waive the requirement that late-stage consent be obtained immediately prior to MAID.
The proposed amendments contained in Bill C-7 sought to address the concern that people who qualified for MAID were faced with a difficult decision – ending their life earlier than they wanted so as to ensure they possessed the requisite capacity to consent to MAID, or, risking that should they wait to access MAID, they could lose capacity and therefore eligibility for MAID. This scenario was the reality of Nova Scotian, Audrey Parker, who campaigned heavily to change the late-stage consent requirement, however, ultimately accessed MAID earlier than she wanted so as to ensure that she would not lose eligibility as a result of declining capacity. Bill C-7 is now known as “Audrey’s Amendment”.
Parliamentary review of the Bill was scheduled to occur in June, 2020. However, with the global impact of COVID-19 and the current proroguing of Parliament, the Bill has yet to become law.
While we wait for Parliamentary review of the Bill, a new and novel question has been raised once again out of Nova Scotia – can you prevent someone else from accessing MAID, even when they have been found eligible under the law? This question has been raised in the context of an elderly couple – called X and Y — grappling with these issues – X wants to die, and his wife of 48 years, Y, does not want to let him. Y attempted to seek an injunction, preventing X from accessing MAID, though he had already qualified for MAID. X is concerned that the delay caused by Y’s filings could risk him losing capacity and therefore eligibility to access MAID – a concern that could be addressed if late stage consent could be waived. However, as Bill C-7 has yet to become law, the proposed amended provisions cannot assist X.
As reported by The Star, in seeking the injunction, Y must make a case for “irreparable harm.” From Y’s perspective, should the injunction fail, her irreparable harm is the death of her husband. From X’s perspective, going on living would be worse. A hearing in X and Y’s case was scheduled for August 26, 2020.
Jocelyn Downie, professor and the James Palmer Chair in Public Policy and Law at the Schulich School of Law at Dalhousie University has offered her opinion: “…it’s straightforward in law and what the answer should be, which is: No, a third party doesn’t get to go to court and prevent somebody from having access to something that the Supreme Court of Canada said we have a Charter right to access.”
We will continue to watch and keep our readers updated as this case develops.
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There’s a really good chance that if you live anywhere in the world that is not completely disconnected from the rest of society, you would have heard about COVID-19, and the fact that it has officially reached every single continent (except for Antarctica). The World Health Organization (WHO) has maintained that the containment of COVID-19 must be the top priority for all countries, given the impact it may have on public health, the economy and social and political issues.
Around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems like high blood pressure, heart problems or diabetes, are more likely to develop serious illness.
In a statement released on March 4, 2020, the WHO indicated “although COVID-19 presents an acute threat now, it is absolutely essential that countries do not lose this opportunity to strengthen their preparedness systems.”
The value of preparedness is being played out in a Seattle suburb, where COVID-19 has spread to a local nursing home, resulting in a quarantine of residents and staff. In the US, nursing homes are being criticized for being incubators of epidemics, with relaxed infection-control practices and low staffing rates, among other issues. Friends and family of residents in this Seattle facility are in an unenviable position, worrying about the health and safety of their loved ones and considering the gut-wrenching possibility that their loved ones might die alone. To read more about this issue, click here.
With the number of confirmed positive cases of COVID-19 on the rise in Ontario, I wonder how our long-term facilities are preparing to deal with an outbreak should one occur?
In the spirit of prevention, it is important to consider reducing the frequency of visits with our elderly loved ones, and spreading knowledge and information about hand-washing and other preventative measures.
For more information about COVID-19, click the links below:
Government of Ontario: https://www.ontario.ca/page/2019-novel-coronavirus
World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
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Medical Assistance in Dying: Breaking down Bill C-7 and the Federal Government’s Proposed Amendments
At the end of January, my colleague, Nick Esterbauer, posted a blog series on recent developments in medical assistance in dying (MAID), with a particular focus on the September, 2019 decision of the Quebec Superior Court of Justice.
In Truchon c Procuruer général du Canada, the court declared sections of the federal and Quebec laws on medically-assisted dying, unconstitutional. The court took specific concern with the Criminal Code requirement that a natural death be “reasonably foreseeable” in order to be eligible for assisted death.
As discussed in Nick’s previous blog, rather than appeal the decision, the federal government announced that it would be proposing legislative amendments.
Those proposals were introduced by way of Bill C-7 to the House of Commons on February 24, 2020. In order to provide for assisted deaths where a natural death is not “reasonably foreseeable,” the Bill proposes the following changes and framework:
- two independent practitioners must confirm that all eligibility criteria is met, and, one of the two practitioners must have expertise in the condition causing the patient’s suffering;
- the person must be informed of, and offered consultations on all counselling, mental health, and disability supports, including community services and palliative care available to them; and
- the two practitioners must agree that the person requesting MAID has “appropriately considered” their options.
The Bill also proposes the following changes:
- The written request (whether the death is reasonably foreseeable or not), need be witnessed by one, rather than two people, which would now (if the Bill is passed) include those directly involved in providing health care services or personal care to the person making the request (except for those health care workers who will be providing the medical assistance in dying to the person, or who have provided an opinion regarding the eligibility criteria);
- The reflection period, previously 10-days in length, will be removed in relation to cases where death is reasonably foreseeable. Where natural death is not reasonably foreseeable, the Bill proposes a 90-day period of assessment (which can be shortened if the person’s loss of capacity is deemed imminent);
- In cases where death is reasonably foreseeable, patients would be able to waive the requirement to consent immediately before the procedure, if consent is given in advance, the procedure has been scheduled, and the person is informed that they may not be able to provide consent at the time of the procedure. In cases where death is not reasonably foreseeable, those patients will still need to confirm consent in order to receive the procedure;
- The Bill also seeks to clarify the information pharmacists (and pharmacist technicians) have to provide when dispensing a substance for an assisted death, as well as to expand the data collected by medical practitioners, those responsible for preliminary assessments regarding the patients eligibility, and pharmacists/technicians.
Parliamentary review of the Bill is scheduled to occur in June of this year. More information on medical assistance in dying can be found on the Government of Canada’s webpage here. For a discussion on the possible impact MAID may have on a will challenge, click here.
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Other blogs that may be of interest:
This blog is the second and final blog in my series discussing estates-related topics in the film The Grand Budapest Hotel. While the first part focused on the application of forfeiture rules in the context of a testator’s murder, this blog specifically discusses the policy considerations that arise as a result of the further Last Will and Testament executed by one of the film’s characters, Madame D.
As a brief refresher, late in the film, a further Last Will and Testament executed by Madame D is discovered, the operation of which is only to be given effect in the event of Madame D’s death by murder. While the concept makes for an interesting twist in the film, in reality the purported condition precedent that the Will takes effect only upon death by murder likely means nothing in the context of Madame D’s estate planning.
Part I of Ontario’s Succession Law Reform Act specifically contemplates that a Will is revoked by, among other actions, the execution of a subsequent Will made in accordance with the provisions of that section. It is not made clear in the film which of Madame D’s two Wills were executed last. If the further Will was executed most recently and complied with all of the requirements of due execution, the prior Will would have been revoked and the second Will would likely prevail irrespective of the condition precedent.
Alternatively, a Will may also be revoked by a written direction of the testator to do so. Failure to expressly revoke a prior Will can potentially create problematic administration scenarios in which a testator may have believed, albeit mistakenly, that a prior Will had been revoked when in fact it had not.
While executing a Will in accordance with the provisions at Part I of the Succession Law Reform Act is sufficient in and of itself to revoke prior Wills, it is nonetheless prudent from an estate planning perspective to include a written intention to revoke prior Wills (provided, of course, the testator intends to do so).
Separately, even if we were to disregard the provisions of the Succession Law Reform Act, there would be a number of practical policy concerns if a Will whose effects were subject to a condition precedent. Notably, a reasonable debate could arise between beneficiaries in scenarios in which the cause of death is ultimately unclear.
The film suggests Madame D’s reason for executing a further Will to take effect on her murder is to ensure her nephew could not benefit from her demise at his hand. However, as discussed in Tuesday’s blog, that goal is accomplished by the operation of the slayer rule. Alternatively, Madame D could have relied on a common estate planning technique by making her nephew’s interest in her estate, rather than the Will in its entirety, subject to a condition precedent.
While Ontario prohibits conditions precedent that are deemed to be contrary to public policy, such as restraining marriage or promoting discriminatory behaviour, other conditions precedent are recognized at law. For example, Madame D could have simply made Dmitri’s interest contingent on his reaching a certain age, or reaching a certain milestone in his life, such as graduating from university. Instead, the purported condition precedent that the further Will was to take effect on her murder likely has no effect at all, provided the evidence shows it was executed after the initial Will and in compliance with the provisions of Part I of the Succession Law Reform Act.
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Recently, I experienced a series of coincidences involving American filmmaker Wes Anderson. In the span of a handful of days, I came across the newly-released trailer of his upcoming film, The French Dispatch, and had the opportunity to revisit his 2014 hit, The Grand Budapest Hotel.
Not having seen the latter in several years, I had entirely forgotten a key plot point involving a handful of curious estate planning decisions. Although the film was released six years ago, I nonetheless attach a mild spoiler warning.
The plot of the film revolves around a specific bequest of a work of art made by one of the characters in the film, Madame D. The painting, Boy with Apple, is left to Ralph Fiennes’ character, Gustave H, the proprietor of the film’s namesake hotel, per Madame D’s (purported) Last Will and Testament.
Her decision to leave the painting to Gustave, rather than her nephew, Dmitri, creates a firestorm of controversy, not least of all because Dmitri accuses Gustave of murdering his aunt in order to secure
his entitlement to Boy with Apple. In reality, it is strongly hinted in the film that Dmitri is responsible for her murder. As an additional twist, a further Last Will and Testament executed by Madame D is discovered later, which appears to leave the entire residue of her estate, rather than just Boy with Apple, to Gustave. However, it is stated in the film that this further Last Will is only to be given effect in the event that Madame D is murdered.
This single plot point raises a number of points of discussion and policy concerns as to what would transpire if the film were set in Ontario. This blog will explore the nature of Dmitri’s and Gustave’s potential entitlements in the Estate.
Prior blogs have explored the concept of common law forfeiture rules in Canada, which preclude an individual from deriving a benefit from their own morally culpable conduct. Colloquially known as the “slayer rule” in the context of a testator-beneficiary relationship, a beneficiary who is found to have caused the unlawful death of a testator will be deemed at common law to have predeceased the testator, thereby extinguishing any interest in the testator’s estate.
In the film, Dmitri accuses Gustave of the murder of Madame D. In the ordinary course, a conviction proper is not a necessary precondition to the applicability of the slayer rule. Rather, common law suggests that the rule applies strictly in the event that the beneficiary’s deliberate act caused the death of the testator. In theory, Gustave’s interest in the estate of Madame D could be in jeopardy despite the lack of culpability. In practice, despite his efforts to frame Gustave, the evidence would likely show that Dmitri was the culprit, thereby extinguishing any interest in Madame D’s estate.
Of course, the further Last Will purportedly being given effect only in the event a murder adds a further layer of discussion, and will be explored in greater detail in part 2 of this blog.
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In many respects the law of Quebec differs from that of other provinces. In terms of medical assistance in dying (MAID), however, a September 2019 decision of the Quebec Superior Court of Justice has the potential to spark change in legislation throughout the country.
In Truchon c Procureur général du Canada, 2019 QCCS 3792, the Court considered the constitutional validity of the requirement that the natural death of individuals accessing MAID be reasonably foreseeable. The applicants had been declared ineligible for MAID on the basis that their deaths were not considered to be reasonably foreseeable. The first applicant suffered from cerebral palsy and his condition had deteriorated significantly in 2012, when he became totally paralyzed, preventing him engaging in activities that he had previously enjoyed. The second applicant suffered from paralysis and severe scoliosis, with a significant change in her health in 1992 when she was diagnosed with degenerative muscular post-polio syndrome. Both applicants lived in constant pain with a poor prognosis of continued suffering and deterioration, but had been denied access to MAID on the basis that their natural deaths were not reasonably foreseeable and decided to seek the Court’s assistance.
The Court first reviewed the issue of whether the reasonably foreseeable natural death requirement violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms. While the restriction was noted to have the potential effect of prolonging the lives of some individuals who would otherwise request MAID, it was also considered to have the risk of encouraging some patients “to end things prematurely, and often in a degrading or violent manner, before being in mortal agony, or having completely lost their dignity or being in the final stage of life.” Due to the exposure of some Canadians seeking MAID to (1) a higher risk of death and (2) physical and psychological pain, “depriv[ing] them of the opportunity to make a fundamental decision that respects their personal dignity and integrity”, the reasonably foreseeable death requirement was ruled to infringe the right to life, liberty, and security under Section 7 of the Charter.
Next, the Court considered whether the reasonably foreseeable natural death requirement violated the right to equality under Section 15 of the Charter. The Court found the applicants were prevented from accessing MAID on the basis of the nature of their disabilities, which notwithstanding being “serious and incurable” did not render death reasonably foreseeable, and that as a result the first applicant in particular was “deprived of the exercise of these choices essential to his dignity as a human being due to his personal characteristics that the challenged provision does not consider. He can neither commit suicide by a method of his own choosing nor legally request this assistance.”
The infringement of the applicants’ fundamental rights under Sections 7 and 15 of the Charter was not considered to be justified by Section 1 and the Court, accordingly, declared these provisions of Quebec and Canadian MAID laws unconstitutional. The declaration of constitutional invalidity of the reasonably foreseeable natural death requirement for accessing MAID was suspended for six months to provide an opportunity to address amendments to provincial and federal legislation.
Quebec has recently announced that it now intends to eliminate the parts of its MAID legislation that have been declared unconstitutional. Prime Minister Trudeau has advised that the government will be updating federal legislation to reflect the Truchon decision prior to March 11, 2020, when the judgment will take effect. Precisely how Canada and Ontario will amend the relevant provisions of MAID legislation has yet to be determined.
As yesterday’s blog mentioned, there has been recent scrutiny regarding the restrictive approach in respect of access to MAID and this decision out of Quebec and corresponding updates to the law may represent an important first step in the right direction in enhancing accessibility.
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A recent decision by an Egyptian court saw the reversal of the trend in following Islamic Sharia inheritance law under which female beneficiaries are entitled to half the interest of their male counterparts.
The claimant, a human rights lawyer, applied to obtain the same rights as her brothers on the death of her father. Her case was previously dismissed by two courts.
In Egypt, Sharia principles are typically applied unless the parties agree that Christian inheritance laws, which do not favour male beneficiaries over females, instead be followed. In this case, the claimant and her brothers agreed that the administration of their father’s estate would not be subject to Sharia inheritance rules.
Last year, a proposed law in Tunisia designed to promote equality in respect of inheritances sparked discussion regarding unequal inheritances in a number of jurisdictions including Egypt. A 2017 survey suggests that over half of Tunisia’s population remains opposed to equal inheritance rights.
It is anticipated that this decision may result in significant change in jurisdictions where Sharia law has historically been applied in respect of personal property, regardless of religion.
Canadian courts have also considered the issue of cultures that may support an estate plan favouring sons over daughters simply on the basis of their gender. In Grewal v Litt, 2019 BCSC 1154, the daughters of the deceased challenged the Wills left by their parents, who both died in 2016, on the basis that they discriminated against them in favour of their brothers on the basis of their sex. The four daughters applied under Section 60 of the Wills, Estates and Succession Act, SBC 2009, c 13 (the “WESA“), for the variation of the Wills that directed the payment of $150,000 to each daughter, while the residue of the estates valued at greater than $9 million was left to the two sons.
Justice Adair noted that there was no dispute that the parents owed a moral obligation to their daughters under BC law, and, as the Wills made inadequate provision for them, they should be varied under the WESA. The Court attempted to resolve the matter by balancing the adequate, just, and equitable provision for the daughters with their parents’ testamentary autonomy and varied the division of estate assets from approximately 93% in favour of the sons with only a combined 7% for the daughters, to the more equitable division of 15% of the value of the estates for each daughter and 20% for each son. Notwithstanding the granting of the variation of the Wills, the Court stopped short of finding that the parents’ testamentary intentions were motivated solely by unacceptable discrimination against the daughters.
While many provinces do not recognize a parental obligation to benefit a non-dependant adult child after death, coming years may nevertheless see an increase in the number of challenges to a will on the basis that its terms are discriminatory.
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Other blog posts that may be of interest: