Category: TOPICS

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

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

09 Aug

A Special Needs Child Requires Special Planning

David M Smith Estate & Trust, Estate Litigation, Estate Planning, Health / Medical, Uncategorized Tags: , , 0 Comments

Oakland Rose is no ordinary child. He is special in more ways than one.

Oakland was diagnosed with Autism at the age of 2 years old and had no verbal communication until the age of 5.

Oakland is currently 20 years old. Although his verbal communication has drastically improved, he is not able to engage in abstract thinking. Oakland’s responses are often rehearsed and premeditated. He is not able to take public transportation alone. Although Oakland will graduate from a specialized high school program, he will never attend university. Oakland has the capacity of a young child.

Oakland will be dependent on his parents for the rest of his life.

Approximately 1 in 66 Canadian children were diagnosed with Autism Spectrum Disorder in 2018. Autism is just one of many developmental disorders that children are diagnosed with each year.

Families with children with special needs are in a unique position when it comes to estate planning. Planning for one’s death and ensuring that your loved ones are supported is an overwhelming task for the average person. For parents with special needs children, the task becomes even more burdensome.

According to one author, a child with special needs includes any child who, at birth or as a result of an illness or injury, is physically, mentally or emotionally disabled. While some people with special needs have successful careers, many will be dependent on their parents for the rest of their lives. Not only will the person be physically and emotionally dependent on their parent, but they will also be financially dependent. As a result, parents of a special needs child face exceptional estate planning challenges.

The higher functioning a special needs person is, the more likely he/she will require assistance from a parent’s estate. This is because government funding typically only provides for basic necessities.

Estate planners must determine whether their clients have children or other immediate family members with special needs. They must also ascertain that individual’s level of functioning. Specialized planning will be required for these families.

A parent of a special needs child might wish to consider:

i) Providing financial compensation for future caregivers in their will
ii) Setting up a special needs trust to ensure their child is not disqualified from government benefits – this trust will supplement but not replace the government benefits
iii) Creating a life care plan for their child which includes educational, living and career planning
iv) Writing a letter of intent summarizing the child’s habits, likes and dislikes
v) Naming a guardian if your child is under the age of 18

It is important to remember that children with disabilities have evolving needs. Thus, parents should create an estate plan that allows for flexibility. The plan should be reassessed and updated regularly to ensure it is in line with the child’s current needs.

Although creating a will and considering your own mortality is a daunting experience, it is far better than the alternative of leaving your child without adequate support!

Thanks for reading!
David Morgan Smith and Tori Joseph

08 Aug

Testamentary Freedom From a Distance 

James Jacuta Estate & Trust, Estate Litigation, Estate Planning, Trustees, Uncategorized, Wills Tags: 1 Comment

We live in a big and beautiful country that is great for summer vacation travel from sea to sea. The vast distance from British Columbia to Nova Scotia is not just geographic, as shown by court decisions involving the review of wills. There is also a great deal of public policy distance between these provinces.

In the recent British Columbia decision on July 17, 2019 of  Grewal v Litt, 2019 BCSC 1154 the  four daughters of the deceased sought a court-ordered variation of the mirror wills of their parents using the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. In their wills, the parents left 95% of their nine million dollar estate to their two sons and the remainder to their four daughters. The daughters sought and obtained a variation based on the facts and legislation with the court ordering 15% to each of the four daughters and 20% to each of the two sons.

In the Nova Scotia decision in Lawen Estate v Nova Scotia Attorney General, 2019 NSSC 162, the court ruled that the deceased had a great deal of testamentary freedom and that this freedom was constitutionally protected. The Estate of Jack Lawen was subject to a claim by some of his adult and competent children under the Nova Scotia Testator’s Family Maintenance Act for a change in the distribution of assets from what was specified in his will. In this case, the daughters applied, but they were not successful. It is interesting to note that the Judge agreed with the argument that the Canadian Charter of Rights and Freedoms could be used to strike down those provisions of the legislation that allowed the adult competent children to even bring their application to the court. The Charter, it was argued, protects the right to decide where the property would go and to disinherit his children. Presiding Justice John Bodurtha wrote in his decision dated May 24, 2019, “A testamentary decision is a fundamental personal decision that is protected under section 7” of the Charter.

Legislation that infringes and limits a testator’s freedom, however, can be justified in some instances, and to certain degrees, depending on the province and the case facts. If you try to disinherit your dependant spouse then the courts would step in and limit your testamentary freedom. This also applies to not providing for dependants who are minor children, non-competent adult children, and even competent adult children in some provinces. One could ask, however, if it is fair and just that the daughters in British Columbia could achieve an equitable distribution of the family estate, but in Nova Scotia, they would have failed.

Canadian limitations on testamentary freedom are small and balanced in comparison to the forced heirship provisions of many European civil law jurisdictions. In those countries, a testator is forced by law to leave a portion of the estate to family members. The percentage of the estate to be distributed and those who are eligible varies by jurisdiction.  It is an interesting public policy approach to make the family unit legally paramount in forced heirship jurisdictions, and not the individual testator.

Thanks for reading!
James Jacuta

07 Aug

The future of cars – hello hydrogen fuel cell

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

Cars have never been a huge focus for me (more of a necessity than a passion) but, at my husband’s insistence, we do go to the Canadian Auto Show in Toronto every four or five years to look at the new models and think through possible future purchases.

When we went several years ago, every manufacturer seemed to have a display centred on electric cars. This was the way of the future, clearly. You couldn’t miss it.

But something seems to have happened. When we went this year, while there were lots of electric cars on display, there was little of the hype from just a few years earlier. And the word we saw more of was something I don’t even remember seeing last time: hydrogen.

Are we almost post-electric?

Did I just wake up and miss the news about electric cars NOT being the next big automotive technology? It seems I might have. I stumbled across this Jim Kenzie review in the Toronto Star comparing a Hyundai electric car versus one of its hydrogen fuel cell cars. Check out what he had to say about the future.

Hyundai … knows as any thinking person does that gasoline will continue to be by far the dominant player for at least another half-century …

Hyundai also understands that battery-powered vehicles will never be more than bit players — again, where are we supposed to get enough electricity to replace all the gasoline we burn?

Simply, we never will.

Battery-powered electrics will mainly be a bridge to the obvious medium-to-long-term solution, which of course is hydrogen-fuel-cell electrics.

You can read the full review here.

Hydrogen may lead

It seems that many in the automotive industry agree with Jim Kenzie. Despite Elon Musk’s view that hydrogen fuel cells are “mind-bogglingly stupid”, a 2017 survey of 1,000 global auto executives concluded hydrogen fuel cell technology will ultimately outperform battery-powered electric vehicles.

A key reason? You can fill up a hydrogen-powered car in five minutes (the same as today’s gas), but electric cars can take hours.

Future plans

In today’s society, new technologies are constantly being developed and trends are forever changing. It’s  important to keep this in mind when contemplating estate plans and future financial investments – what appears to be the “next big thing” one year may be forgotten the next.

My conclusions from all of this are simple. My electric car guilt is now gone. I’m not going to line up for a Tesla or stress about the fact that I haven’t gone electric. Instead, I’ll look for other ways to reduce my automotive carbon footprint – and keep my eye on how hydrogen fuel cells are evolving.

Thanks for reading!
Suzana Popovic-Montag

06 Aug

Off-site funerals

James Jacuta Estate & Trust, Estate Litigation, Estate Planning, Funerals, Uncategorized, Wills Tags: , , , , 0 Comments

With the summer vacation now at the midpoint, many people are travelling as part of their holidays. But, what can one do when a friend or family member dies while you are on vacation? Does your trip have to be cut short? Are there additional charges to be paid for changing dates on plane tickets and for hotel room cancellations?  Not any longer. In many cases, a livestream funeral service is now available. Some companies provide this service via the internet. Or, depending upon the funeral home, wireless can be used to stream the memorial service using facetime or skype. There are even websites that provide information and assist with the planning of the do-it-yourself camera work.

There are many advantages for those who cannot attend even if not on vacation. Other reasons to not attend in person might be because of illness, distance, cost or other barriers.  Now almost everyone can attend from wherever they are.

Also, the funeral service can be archived and watched again online. This can be of benefit not only to those who could not attend the service in person but also to family members who were there. It can help in dealing with their loss or to simply remember things that were missed in the immediate grief of the service. Technology has developed rapidly. It has become accepted and has recently extended into the areas of wills and estates, providing services such as online obituaries instead of publishing in newspapers; advertising for estate creditors using online services instead of much more expensive newspaper print notices; cataloging and registering the location of wills (in some jurisdictions); assisting lawyers in automated interactive drafting of wills (like the Hull e-State Planner); recognizing the validity of electronic wills (in some jurisdictions); among others. The trend towards even more changes coming in this area is strong and there is hope that expanding technology use will serve to assist friends and family members through difficult times.

Thanks for reading!
Jim Jacuta

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