Category: Continuing Legal Education
An Attorney for Personal Care and a Guardian of the Person is statutorily mandated under section 66(3) the Substitute Decisions Act, 1992 (the “SDA“) to make certain decisions in the incapable person’s best interests if the incapable person’s wishes and instructions are unknown or if it is impossible to act in accordance with those wishes and instructions.
A component of the best interests analysis, as set out in section 66(4), includes considering whether the guardian’s decision is likely to,
“i. improve the quality of the person’s life,
ii. prevent the quality of the person’s life from deteriorating, or
iii. reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.”
Given that improving the quality of a person’s life and preventing their quality of life from deteriorating are two sides of the same coin, there is exciting and heart-warming new technology which uses Google Street View to treat Alzheimer’s patients.
This new technology is a prototype called BikeAround. BikeAround is essentially a stationary bike that stimulates the experience of, literally, biking down memory lane for an Alzheimer’s patient. The patient is placed on a stationary bike which faces a projection of his/her familiar hometown streets from Google Street View. The experience is intended to prevent memory loss by bringing to mind locations that are associated with the patient’s memories. The simultaneous physical stimulation from the act of biking is also considered to be a crucial component of the benefits from this new technology.
Anne-Christine Hertz is the biomechanical engineer who developed BikeAround.
This video on Hertz’s research is not to be missed.
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The answer is no according to Borges v. Santos, 2017 ONCJ 651.
In Borges v. Santos, a garnishment proceeding was commenced by Maria, who was entitled to child support from Antonio. Maria sought to garnish a trust that was established from the Estate of Antonio’s mother. Pursuant to the Will of Antonio’s mother, the Trustees were given an absolute and unfettered discretion to pay any part of income or capital for Antonio’s benefit and to keep Antonio’s comfort and well-being in mind in exercising their discretion. In this case, the Trustees also happened to be Antonio’s brother and sister as well as the gift-over beneficiaries of this Trust such that they will be entitled to all income and capital that were not distributed to Antonio 21 years after their mother’s death.
In one of her arguments, Maria contended that the Trust was not truly discretionary because of the non-arm’s length relationship between the Trustees and Antonio since they were siblings. The Court in case clarified that Tremblay v. Tremblay, 2016 ONSC 588, “does not stand for the proposition that all familial relationships between trustees and beneficiaries automatically demonstrate that the trust is under the control and hence the property of the beneficiary” for the purposes of the Family Law Act.
Interestingly, Antonio gave evidence in this proceeding that he wanted the Trustees to honour his child support obligations to Maria, although they chose not to comply with his wishes. Ultimately, as obiter, the Court also asked the Trustees to consider making a distribution to Antonio for his comfort and well-being by supporting his son, Christopher, while acknowledging that he could not order them to do so.
For those of you who are interested in the essential elements of a Henson Trust, click here, for a previous blog on this topic by Ian Hull.
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As part two of my earlier blog on the issue of expert witnesses at trial, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, is a great read for the Court of Appeal’s view on the role of the trial judge during expert testimony.
In the introduction alone, Justice Hourigan was clear that “gone are the days when an expert served as a hired gun or advocate” (para. 1) and that it is the trial judge’s role to act as a gatekeeper so that the expert opinion evidence before the court is “fair, objective and non-partisan” (para. 2).
While my earlier blog focused on the legal test during the qualification stage, Justice Hourigan was also clear that the trial judge does not become functus the moment an expert witness is permitted to give expert opinion evidence. Rather,
“The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action” (para. 63).”
In this case, Justice Hourigan commented that there were various options available to the trial judge after the qualification stage, which trial counsel should also be aware of as suggestions in their toolkit. To quote Justice Hourigan at paragraphs 67 and 68 of this decision,
 Given this ongoing gatekeeper discretion, the question remains of what, as a practical matter, the trial judge could or should have done in this case. His first option would have been to advise counsel that he was going to give either a mid-trial or final instruction that Dr. Bail’s testimony would be excluded in whole or in part from the evidence. Had he taken that route, he would have received submissions from counsel in the absence of the jury and proceeded as he saw fit. Alternately, he could have asked for submissions from counsel on a mistrial, again in the absence of the jury, and ruled accordingly. In the event that he had to interrupt Dr. Bail’s testimony mid-trial, he would have had to consider carefully how best to minimize the potential prejudicial effect of the interruption from the respondent’s perspective.
 The point is that the trial judge was not powerless and should have taken action. The dangers of admitting expert evidence suggest a need for a trial judge to exercise prudence in excluding the testimony of an expert who lacks impartiality before those dangers manifest.
Thanks for reading this week!
An Order excluding all the parties from each other’s examinations for discovery was made in an estate matter before the Hon. Justice Myers. In Boodhoo v. Persaud, the Plaintiff is one of the Deceased’s surviving daughters, while the Defendants are the Deceased’s brother and sister-in-law. During the initial stages of litigation, the Defendant Uncle was removed as the Estate Trustee of the Boodhoo Estate in 2012 and he was ordered to account for the duration of his administration. By the time of the present hearing before Justice Myers, the accounting was still deficient. At the same time, the Plaintiff was also pursuing allegations against her uncle’s wife for her involvement in the administration of the Estate.
In applying the test for the exclusion of witnesses in Lazar v. TD General Insurance Company, 2017 ONSC 1242, Justice Myers found that “all of the parties have cause to be worried that others will tailor their evidence based upon what they hear at examinations for discovery”. Where the credibility of the parties appears to be crucial, especially in the absence of documentary records, his Honour ordered that:
“Counsel for the parties and anyone who attends discoveries with them shall not disclose any evidence given by a party on examination for discovery to any other party in advance of the completion of all of their respective examinations by answering all undertakings and refusals (if any). Nor shall any counsel or their staff provide any transcripts or summaries of transcripts of any of the examinations for discovery to any of the parties prior to the completion of all of their respective examinations by answering all undertakings and refusals (if any).”
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The applicability of limitation periods to estates, trusts, and capacity matters is crucial for litigators to consider. In a recent decision of the Superior Court of Justice, the Court was asked to consider the application of the limitation period in Part V of the Succession Law Reform Act (“SLRA”) to a claim that was advanced by the Public Guardian and Trustee (the “PGT”) as the litigation guardian of an incapable support claimant.
Shaw v. Barber, 2017 ONSC 2155, is an important precedent for the proposition that limitation periods do not run against the incapable person from the day that the PGT becomes his/her statutory guardian of property. By operation of section 16(5) of the Substitute Decisions Act, 1992, the PGT automatically becomes an incapable person’s statutory guardian of property the moment they receive a certificate of incapacity from the assessor. In Shaw v. Barber, the dependant support claimant, Lois Shaw, was assessed and found to be incapable of managing property on February 16, 2015 and a copy of the certificate was sent to the PGT on or about February 25, 2015.
Prior to the assessment, Ms. Shaw lived with Frank Cyril Barber on the date of his death, although they were not married. Mr. Barber died in August, 2014, leaving a Will which named his son as the sole Estate Trustee and beneficiary of his Estate. A Certificate of Appointment of Estate Trustee with a Will was issued to Mr. Barber’s son on February 5, 2015. Pursuant to section 61(1) of the SLRA, an application for dependant support may not be made six months after the grant of probate, subject to the Court’s discretion in section 61(2) to allow claims against the undistributed portion of an estate. Without considering the Court’s discretion in section 61(2) of the Act, Justice McNamara found that Ms. Shaw’s claim for dependant support was not statute barred despite the fact that it was issued, one year after six months from probate, on August 5, 2016.
In his reasoning, Justice McNamara considered the tolling provision applicable to incapable persons while he/she is not represented by a litigation guardian in section 7 of the Limitations Act, 2002 (which applies to the section 61 of the SLRA). The turning point then becomes whether a guardian of property is automatically a litigation guardian in relation to the claim at issue since a guardian has the power to do anything the incapable person may do except make a will. In this case, there was an affidavit from PGT counsel which explained the time consuming investigations involved when the PGT becomes a statutory guardian of property because of the lack of first-hand information from the incapable individual. Justice McNamara determined that a guardian of property shall act as litigation guardian when he/she has determined that there is a basis for exercising their authority in that role, and that imposing a limitation period from the date in which the PGT becomes statutory guardian is contrary to the Limitations Act and it would create impossible timelines and potential injustice for this vulnerable group. Furthermore, Justice McNamara was also persuaded by the fact that the Estate Trustee in this case will not be prejudiced by the delay, given that he is also the sole beneficiary, and that he was aware all along that the PGT was considering a claim against the Estate.
This case is also an example of the latitude that Courts may accord to large-scale claimants as seen in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709.
Please do not hesitate to contact our firm for a copy of Justice McNamara’s reasons in Shaw v. Barber and click here for comments from Russel Molot, counsel for the PGT in this matter, as reported in the Law Times.
Last week, Ian blogged on the Retirement Homes Regulatory Authority, financial abuse of the elderly, and the competency of elderly individuals to make financial decisions. As stated last week, it is unclear what the responsibilities are of a retirement home in cases where there have been loans between a resident and the licensee.
The recent Licence Appeal Tribunal decision of 2138658 Ontario Ltd. ola Seeley’s Bay Retirement Home v. Registrar, Retirement Homes Regulatory Authority is the first case to look at financial abuse in the context of the Retirement Homes Act, 2010, S.O. 2010 Chapter 11 (the “Act”). This case involved the Retirement Homes Regulatory Authority’s revocation of Seeley’s Bay Retirement Home’s licence on the basis of the alleged financial abuse of three residents, and a former resident.
The Tribunal determined that the former resident offered to grant the licensee a second mortgage, however, the resident had independent legal advice and a proper written mortgage, and as such, no financial abuse was found.
The Tribunal found financial abuse of one out of the three residents. For the first two residents, the Tribunal did not find financial abuse as they were a couple that had a long-term 25-30 year relationship with the licensee. The couple offered a loan to the licensee but he had counted the loan toward the couple’s rent and had paid off the loan at the time of the hearing. The Tribunal found that this was a trade-off, and that people who are competent to manage their own affairs ought to be allowed to make independent financial decisions, and found the loan to be “a matter of friendship and faith”.
The Tribunal found financial abuse of the third resident. Resident three lived in the home for 6 years prior to her death, and was determined to be capable. She managed her own finances and had no close family. The licensee began approaching her for money, which he applied to her rent, yet continued to borrow money beyond the amount paid of rent. There was nothing in writing, no records of the payment, and the resident had no independent legal advice. In 2016, the resident’s health began to deteriorate and she was worried that she would not be able to cover her expenses due to the amount of money she had lent to the licensee. She approached the licensee about repayment and the licensee took no action. The loans were outstanding upon the resident’s death. The Tribunal found this amounted to financial abuse as it was found to be “misappropriation” of resident money under the Act, pursuant to Regulation 166/11 and section 67.
In considering all of the claims against the residence, the Tribunal found that the loans raised concerns about the licensee’s ability to operate the home with honesty and integrity. This was exemplified due to the third resident’s dependency on the home. Moreover, the Tribunal noted that in the third case, there was harm to the resident’s peace of mind along with a risk that she would not be able to pay for her own long-term care.
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I was fortunate to have the opportunity to participate in a panel discussion on CBC’s show “On the Money” last night. The panel discussion was prompted by an article posted by CBC news entitled “Care of aging parents costs Canadians an estimated $33B annually.”
The essence of the article was that Canada’s aging population is causing adult children to incur a significant burden, not only in terms of the outlay of money for caregiving costs but, perhaps more significantly, arising from time away from work required to care for their parents.
The Ontario Legislature has recognized the need to address this issue.
Section 49.1(2) of the Employment Standards Act, contains a section on Family Caregiver Leave, which permits employees to take an unpaid leave of absence of up to eight weeks in order to provide care or support to a sick family member.
Pursuant to the statute, an employee would be entitled to an unpaid leave of absence to provide “care or support” to the following family members/individuals who have a “serious medical condition”, including:
- The employee’s spouse.
- A parent, step-parent or foster parent of the employee.
- A child, step-child or foster child of the employee or the employee’s spouse.
- Any individual prescribed as a family member for the purpose of this section.
Although it would appear that there is some relief afforded by the Legislature when an aging parent needs assistance, the fact of the matter is that long-term needs cannot be met except by careful estate planning and consideration of financial resources. It might be worth adding that the family caregiver leave provisions appear to be more directed to short-term illnesses rather than the progressive decline associated with dementia and Alzheimer’s disease.
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Today’s blog was inspired by Karen Von Hahn’s article in The Globe and Mail about the memoir that she wrote on the subject of her late mother. What Remains: Object Lessons of Love and Loss appears to be a collection of chapters in which each chapter is focused on a different thing or object that reminded the author of her mother. According to Von Hahn, she used items, like her mother’s silver satin sofas and a pack of cigarettes, “as a starting point, lens and metaphor to talk about who she was”. Perhaps poignantly, Von Hahn wrote that “the first line of the book is that the last word my mother ever said to me was ‘pearls’”.
Given the importance that we may attach to our things (and the importance that our loved ones may correlatively attach to our things), those who are thinking about their estate plans may wish to include specific provisions in their Will with respect to the disposition of personal possessions on death.
In doing so, an attorney for property or a guardian of property will also be prohibited from getting rid of these specific items during the testator’s lifetime, if he/she knows that these items are subject to a specific testamentary gift in accordance with section 35.1 of the Substitute Decisions Act, 1992. That being said, section 35.1 of the Act also allows for the disposition of a specific testamentary gift if it is necessary to comply with the guardian’s duties, or if it is gifted to the person who would be entitled to it under the Will within the purview of an optional expenditure under section 37. Accordingly, specificity is key in this regard and it would appear that care should be given to describing the item with as many details as possible.
As Von Hahn wrote in her article,
“Like it or not, we read every book by its cover, and judge everyone we meet by their shoes. Which is why we live our lives engaged in a deep and meaningful relationship with both our possessions, and also those of whom we love.”
On that note, happy long weekend everyone!
Our firm attended the OBA Professional Development Dinner With Your Honourable Estates List Judges on April 5, 2017. The topic of the new practice advisory on video conferencing, and its intended use, was one of the topics that were discussed that evening.
This particular practice advisory is applicable only to 9:30 scheduling appointments on the Toronto Estates List and it was made in accordance with Rule 1.08 of the Rules of Civil Procedure. The new practice advisory is clear that, unless otherwise directed by the court, video conferencing is available in consent matters, unopposed matters, and scheduling matters. Parties or counsel who chose to appear by video conference must make their own arrangements and they may use CourtCall without prior Court approval. An appearance by CourtCall should be communicated to the Court in either the request or confirmation form filed for the appearance. As a matter of convenience, the Order, once issue and entered, will be sent to you by CourtCall.
For those who are interested, further details with respect to what CourtCall is and how it works are available on their website, https://courtcall.com.
Any other arrangements with alternative technologies for this purpose will require prior Court approval.
According to the Honourable Estates List Judges who were present during the Dinner, regardless of whether a matter is on consent or unopposed, video conference may still be less than ideal in situations where substantive relief is sought, such as an unopposed guardianship application.
For future OBA Trusts and Estates Law events like the Dinner, please check out the section group here.
Thanks for reading,
Rule 48.14 Interpreted! When will the Registrar Dismiss an Action for Delay? How Does it Apply to Estate Matters?
As recently as November 25, 2016, the Associate Chief Justice of the Superior Court, the Hon. Justice Marrocco, released a written endorsement in Daniels v. Grizzell, 2016 ONSC 7351, interpreting portions of Rule 48.14 since administrative dismissals may now occur from and after January 1, 2017.
The Registrar will Not Dismiss for Delay When…
According to the Hon. Justice Marrocco, “the Registrar will not dismiss an action for delay if the following events take place at least 30 days before the expiry of the applicable period:
- a party files a timetable signed by all the parties; and
- a party files a draft order establishing the timetable;
In addition, if a consent timetable signed by all the parties, and a draft order is filed, the Registrar shall not dismiss the action pursuant to Rule 48.14.”
Motion for Status Hearing and Motion to Set Aside the Dismissal
If the parties are unable to reach a consent, a motion for a status hearing may brought before the expiry of the applicable period pursuant to Rule 48.14(5). The Hon. Justice Marrocco clarified that “the Registrar shall not dismiss the matter until the motion is heard even if the matter is heard after the dismissal date prescribed by the Rule.”
Moreover, “the dismissal of an action by the Registrar can be set aside under Rule 37.14”.
Rule 48.14 Does Not Apply to Applications and Applications Converted to Actions
As it pertains to those of us engaged in estates, trusts, and substitute decision making matters, Rule 48.14 “does not apply to proceedings commenced by an application. Accordingly, estate matters which are commenced by way of an action are subject to the Rule; estate matters commenced by application are not. For practical reasons grounded in the coding of actions and applications in the court’s information management system, the application of Rule 48.14 is determined at the time the proceeding is commenced. For the same reason, applications which are converted to actions are not subject to Rule 48.14.”
Thank you for reading!