Category: Elder Law
For many, a survivor’s pension is an indispensable source of income following the death of a spouse. In the recent case of Weatherley v. Canada (Attorney General), 2021 FCA 158, before the Federal Court, one widow fought to maximize her survivor’s pension benefits by challenging the constitutionality of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the “CPP“).
The applicant, in this case, was an elderly woman who was twice-widowed. Under the CPP, after a spouse dies, the surviving spouse can receive a survivor’s pension. If the surviving spouse remarries and their second spouse dies, subsection 63(6) of the CPP limits the surviving spouse to only one survivor’s pension, being the higher of the two. In Weatherley, the applicant sought two survivor’s pensions before the Social Security Tribunal on the ground that s. 63(6) of the CPP discriminates against her on the basis of sex contrary to section 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter“). She argued that s. 63(6) draws a distinction based on sex because the majority of people who are twice-widowed are women. Furthermore, s. 63(6) denies a benefit because, without this provision, she would receive symbolic recognition for non-monetary contributions she made to her first marriage.
The General Division agreed with the applicant, finding a Charter infringement. The Appeal Division reversed that decision. On the application for judicial review, the Federal Court found that s. 63(6) of the CPP is constitutional and does not discriminate on the basis of sex.
The Honourable Justice David Stratas, writing for the Federal Court, explained in his decision that Charter cases call for a careful examination of context. In this case, the context is informed by 1) the nature of the scheme established and regulated by the CPP, and 2) the nature of the survivor’s pension under that scheme. He explained that the scheme is a national “contributory plan”, not a “social-welfare” scheme. It was never intended to meet the needs of all contributors in every conceivable circumstance but rather to provide partial earnings replacement in certain circumstances, such as the death of a wage-earning spouse. Subsection 63(6) reflects the insurance nature of the scheme: an individual can only lose one wage-earning spouse at a time.
To establish that s. 63(6) infringes s. 15(1) of the Charter, the applicant was required to show that s. 63(6) creates a distinction based on an enumerated or analogous ground, and s. 63(6) imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage. Justice Stratas concluded that the evidence filed before the Social Security Tribunal did not establish that s. 63(6) draws a distinction on the basis of sex or denies a benefit.
First, there is no sex-based discrepancy in the demographics of the group the law could apply to, i.e., once-widowed survivors, and the demographics of the group the law did apply to, i.e., twice-widowed survivors. These two groups are nearly identical. Second, the evidence did not clearly show that twice-widowed survivors are disadvantaged as compared to once-widowed survivors and, in fact, there was some evidence to suggest that the former group fare better under the scheme. Additionally, Justice Stratas clarified that the survivor’s pension is not intended to recognize non-financial contributions made to a marriage. Instead, it was designed to provide a minimum income supplement determined, in part, by contributions made to the scheme by the spouse. For these reasons, no Charter infringement was found and the applicant’s claim was dismissed.
In his decision, Justice Stratas went on to state that even if s. 63(6) of the CPP somehow violates s. 15(1) of the Charter, then it is a reasonable limitation on rights and, thus, saved under section 1 of the Charter.
The Federal Court’s decision in Weatherley offers useful insight into the CPP and Canada’s pension benefits scheme as a whole. It also suggests that the judiciary will continue to give significant deference to Parliament when tasked with scrutinizing complex benefits legislation such as the CPP.
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A power of attorney (POA) is a legal document that gives someone else the authority to make decisions on your behalf. The term “attorney” refers to the person(s) that you have chosen to act on your behalf. There are three types of POA in Ontario: general POAs for property, continuing POA for property, and POA for personal care. These documents can be very useful planning tools; however, it is important to understand the differences between them so that they can be used optimally. This blog compares the three types of POAs in Ontario.
1. General Power of Attorney for Property
A general POA for property can give your attorney the right to make decisions with respect to all or some of your finances and property. Unless you expressly restrict your attorney’s powers in the POA document, they will be able to do anything that you can do concerning your property, except make a Will.
A general POA can be limited by task, by type of property, and/or by time. For example, you may want to grant a POA for the specific purpose of selling your home. If you do not want everything you own to be managed by your appointed attorney, you could limit the property that is covered by your POA. A common example is to exclude all corporate assets from your POA. You can also specify whether the general POA starts from the moment it is executed or upon a specific date or event. To ensure that the POA is used as intended and without issue, any restrictions placed on the attorney’s powers should be clearly and unequivocally set out in the POA document.
It is important to note that a general POA allows your attorney to act on your behalf only while you are mentally capable of managing your own affairs. The general POA ends and cannot be used if and when you become mentally incapable.
2. Continuing Power of Attorney for Property
A continuing or enduring POA for property is essentially the same as a general POA for property with one key difference: the continuing POA for property allows your attorney to continue acting on your behalf even after you become mentally incapable of managing your own affairs. To ensure that the POA endures beyond your incapacity, the document must be a Continuing Power of Attorney for Property or expressly state that your attorney(s) may continue to act if you become mentally incapable.
In order to make a POA for property, you must be at least 18 years old and possess the requisite level of mental capacity as described in s. 8(1) of the Substitute Decisions Act.
3. Power of Attorney for Personal Care
A POA for personal care covers decisions relating to your personal health and well-being, such as medical treatment, diet, housing, clothing, hygiene, and safety. Similar to a POA for property, the attorney for personal care will have the authority to make almost every decision related to your personal care that you would normally make for yourself unless their powers are otherwise restricted in the POA document.
Unlike a POA for property, a POA for personal care may only be used when you are not mentally capable of making the personal care decision yourself. In other words, your attorney can only step in when there is a personal care decision that you are incapable of making for yourself. Depending on the specific decision at issue, either your attorney or a health professional must determine whether you are incapable of making the decision before your attorney can act on your behalf.
In order to make a POA for personal care, you must be at least 16 years old and possess the requisite level of mental capacity as described in s.47 of the Substitute Decisions Act.
The Office of the Public Guardian and Trustee provides POA document templates, which can be found here. However, it is best to obtain legal advice when creating a POA to ensure that it is drafted in a way that will allow your attorneys to manage your property and/or personal care as you intended.
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Earlier this week I was so pleased to participate in the kick-off of the first OBA Elder Law Day Conference. We had a full day of venerated experts addressing a wide array of issues impacting older Ontarians (our fastest growing demographic). With more than a dozen speakers, including a key-note presentation by Jane Meadus of the Advocacy Centre for the Elderly (ACE), the materials for the program are a must read.
Much was learned, including about our long-term care (LTC) system, which the health crisis has brought into greater focus. Audrey Miller, our final presenter for the day, looked at LTC challenges exacerbated by our aging population outpacing the accommodations available, and cited some staggering statistics in that regard. She also educated us on the LTC application process, which includes:
- An application is made through the Home and Community Care Support Services (HCCSS) (formerly the LHIN, and, before that, CCAC) for a private room, semi-private, or basic/ward bed (up to 4 beds in a room);
- The applicant can apply to up to 5 different facilities;
- The wait time can range from a few months to a few years, with priority being determined by a number of different factors;
- Once a bed is offered, an applicant has 24-hours to accept it. If refused, barring a significant change in circumstance the person’s name is removed from the lists. Three months must pass before a new application can proceed (though the 3-month penalty has been waived as a result of the pandemic); and
- Each resident has to pay a monthly co-payment, with the rate varying according to home’s structural class and move-in date.
With increasing demand for LTC facilities, there are many applicants on waitlists. Though most prefer to live at home, they cannot afford to do so given their increasing care needs, the high associated costs and the lack of sufficient publicly funded home care services. It thus comes as no surprise that by the time residents are admitted into LTC, the statistics cited by Ms. Miller indicate that 9/10 of the residents have mental impairment, over 40% exhibit aggressive behaviours due to their cognitive condition, and 1 in 3 is completely dependent on staff. These figures highlight the critical need and importance of increasing the daily direct care being provided to residents. As noted in my earlier blog, within the next four years the Ontario budget aims to increase direct care to 4 hours per day.
Looking ahead, $3 billion in spending is pledged in the federal budget over five years to strengthen Canada’s LTC systems, a task force is being put into place to develop a new National LTC Services standard, and Ontario’s Long-Term Care COVID-19 Commission’s Final Report made numerous recommendations for change. We will be following the progress.
Thanks for reading and have a great day,
The pandemic spotlighted our treatment of older Ontarians, including from the vantage point of discrimination based on age in health care. The problem showed itself in various ways, including through crowded hospitals discharging elderly patients who still needed care and through seniors in long-term care homes with COVID-19 having struggled to get hospital treatment. Reportedly, only 20% of those in long-term care in Ontario who died from COVID-19 were transferred to hospitals, the tragic result being thousands of critically ill residents left to die in facilities not armed to manage the virus.
Ageism transcends the health care system, occurring consciously or unconsciously in other areas, including in our law practices. In Alex Procope’s article How to Combat Ageism in the Practice of Law, he speaks to the World Health Organization’s (WHO) recently published Global Report on Ageism, and its reinforcement of the need for us to recognize and resist ageism in our practice.
To recognize it, Mr. Procope looks at the definition, which the WHO Report describes as stereotypes (how we think), prejudice (how we feel) and discrimination (how we act) directed towards people on the basis of their age. He also provides examples of ageism in play in estate litigation, including through (i) a testator whose will is subject to challenge being depicted as susceptible to undue influence due to their age, (ii) the rights to privacy and due process being downplayed in guardianship disputes, and (iii) through requiring a potential client to submit to a capacity assessment before proceeding with the drafting of a will.
To combat ageism, Mr. Procope considers strategies that he employs, including by approaching cases with the rights and autonomies of the older client as paramount. By seeking to understand the culture, race, interests etc. of older persons, their individuality can be the focus. Additionally, import is given to using non-discriminatory narrative. For instance, he does not cite a person’s age as evidence of incapacity, and he links a person’s frailties to specific evidence of the various factors at play in the case, rather than to age.
These materials serve as a reminder to me that ageism can present itself in both obvious and subtle ways, and that we all have opportunities to address it in our practices.
Thanks for reading and have a great day,
Join us on Monday, June 21st for the Ontario Bar Association’s Elder Law Day: A Conference for Lawyers and Other Professionals Assisting Seniors, sponsored by Hull and Hull LLP. The OBA Elder Law Program will be discussing the most pressing issues impacting our aging population. The expert faculty will get you up to speed on the latest developments and share need-to-know insights to take your expertise to the next level.
Hull and Hull LLP is proud to sponsor the Elder Law Day program. Our very own Natalia Angelini and Sydney Osmar are on the OBA’s Elder Law Executive, as Past Chair and Member-At-Large respectively.
We hope that the Eldar Law Day conference will bring to light some of the issues we have seen in this area of case law.
Here is the schedule for the day:
|10:00 am – 12:00 pm||Part 1: Critical Issues in Elder Law|
|12:15 pm – 12:45 pm||Keynote Address|
|1:00 pm – 2:30 pm||Part 2: What’s Really Going on Inside Long-Term Care and Retirement Homes|
|2:45 pm – 4:00 pm||Part 3: Lightning Round: Quick Tips and Tidbits for Your Elder Law Practice|
|4:00 pm – 5:00 pm||Virtual Networking|
You can register for the full-day program or exclusively for Part 1, Part 2, or Part 3, via the OBA website here. *All registrations will include the Keynote Address and virtual networking session.
We look forward to participating in and learning from our colleagues during the conference.
Further to our article “Small Estate” in Ontario now $150,000, as of April 1, 2021, for an estate valued at $150,000 or less, probate can be applied for through the small estate court process.
Applying for probate can be a complicating and overwhelming process, especially considering the fact that the steps that need to be taken or forms that need to be filled out can vary depending on the specific circumstances of the estate.
The Probate of a Small Estate webpage provides helpful information on some of the steps included in applying for probate of a “Small Estate”.
Please see below a brief overview of some of the important things to consider when applying for probate of a “Small Estate”.
Depending on the specific circumstances of the estate, different court forms may need to be completed and filed with the court.
As noted in Rule 74.1.03(1) of the Rules of Civil Procedure, “A person may seek a small estate certificate by filing an application for a small estate certificate (Form 74.1A) together with,
(a) a request to file an application for a small estate certificate or an amended small estate certificate (Form 74.1B);
(b) proof of death;
(c) a draft small estate certificate (Form 74.1C);
(d) if there is a will, the original of the will and of any codicils, together with the following evidence of due execution of the will and each codicil:
(i) if the will or codicil is not in holograph form,
(A) an affidavit of execution (Form 74.8) of the will or codicil,
(B) if the will or codicil contains an alteration, erasure, obliteration or interlineation that has not been attested, an affidavit as to the condition of the will or codicil at the time of execution (Form 74.10), or
(C) if each of the witnesses to the will or codicil has died or cannot be found, such other evidence of due execution as the court may require, or
(ii) if the will or codicil is in holograph form, an affidavit attesting that the handwriting and signature in the will or codicil are those of the deceased (Form 74.9);
(e) any security required by the Estates Act; and
(f) such additional or other material as the court directs.”
Estate Administration Tax
It is important to determine the value of the estate.
Estate Administration Tax is payable on the value of the estate of a deceased person as of the date of their death, for estates valued over $50,000.
For estates valued over $50,000, the Estate Administration Tax will be calculated as $15 for every $1,000 (or part thereof) of the value of the estate. Estate Administration Tax can be calculated using the calculator provided on this Ministry of the Attorney General webpage.
Service of Documents
Pursuant to Rule 74.1.03(3) of the Rules of Civil Procedure, “the applicant shall send or give the following documents to each person entitled to share in the distribution of the estate, including charities and contingent beneficiaries:
- A copy of the application for a small estate certificate (Form 74.1A) and of any attachments.
- If there is a will, a copy of the will and of any codicils.”
It’s important to note that pursuant to Rule 74.1.03(4) of the Rules of Civil Procedure, “if a person who is entitled to share in the distribution of the estate is less than 18 years of age, the documents listed in subrule (3) shall not be sent to the person but shall instead be sent or given to a parent or guardian and to the Children’s Lawyer.”
Further, a copy of the application and a copy of the will and codicil (if applicable) may need to be provided to Office of the Public Guardian and Trustee.
Detailed information in respect of “Small Estates” and the process of applying for probate of a “Small Estate” can be found in Rule 74 of the Rules of Civil Procedure.
Please note, the above-noted information has been provided for informational purposes only and is not legal advice. For more information, please reach out to one of our team members who will be happy to assist you.
Thank you for reading.
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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Recent discussion of proposed amendments to the Succession Law Reform Act under Bill 245 has raised questions of whether corresponding changes will be made to the Substitute Decisions Act, 1992. In particular, some estate lawyers are wondering whether a new validation section may be added to the Substitute Decisions Act to address the issue of court validation of powers of attorney (like the new section 21.1 of the Succession Law Reform Act has been proposed to allow courts to validate improperly-executed wills) and/or whether remote execution options may soon be made permanent for powers of attorney as well as wills.
The Substitute Decisions Act already contains curative provisions that allow the court to validate incapacity planning documents in circumstances where the documents are not executed in strict compliance with formal requirements.
Subsection 10(4) of the Substitute Decisions Act reads as follows with respect to the validation of Continuing Powers of Attorney for Property:
(4) A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.
Subsection 48(4) of the Substitute Decisions Act reads as follows with respect to the validation of Powers of Attorney for Personal Care:
(4) A power of attorney for personal care that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the power of attorney for personal care to be effective if the court is satisfied that it is in the grantor’s interests to do so.
Remote Execution of Documents in Counterpart
While the focus of discussions among estate lawyers regarding Bill 245 may be the proposed updates to the Succession Law Reform Act and, in terms of formal will execution, the amendment of section 4 as it relates to the requirements for the witnessing of wills, Bill 245 also includes proposed changes to the Substitute Decisions Act under Schedule 8.
A new section 3.1 of the Substitute Decisions Act is being proposed to add specific references to the use of audio-visual communication technology and counterpart signing options in the execution and witnessing of Continuing Powers of Attorney for Property and Powers of Attorney for Personal Care. Accordingly, if Bill 245 is passed, the remote and counterpart execution options made available during the pandemic will be made permanent for wills and powers of attorney alike.
Thank you for reading.
Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity
Last year, my colleague Nick Esterbauer blogged about the Plan Well Guide – a free online tool to assist individuals with their advance care planning. An advance care plan sets out how a person wishes to be treated during a serious illness or health crisis. The Plan Well Guide helps users to create a ‘Dear Doctor’ Letter explaining their values and preferences with respect to their future medical care, which can then be given to their physician and substitute decision-makers to ensure that their wishes are known. For a more in-depth look at the Plan Well Guide and the process of creating a Dear Doctor letter, you can read Nick’s blog here.
Recently, the Plan Well Guide launched a new toolkit designed for legal practitioners. This free online toolkit is intended to help lawyers help their clients become better prepared for future serious illness and incapacitation. In addition to various educational resources for both lawyers and their clients, the toolkit includes:
- a sample power of attorney for personal care;
- a sample advanced health care directive;
- a sample personal directive;
- a sample ‘Dear Doctor’ letter; and
- a step-by-step guide on how lawyers can incorporate the Plan Well Guide into their practice.
Of course, the sample legal documents contained in the toolkit should be amended to reflect the client’s specific set of circumstances and the laws of the applicable jurisdiction.
What I like most about the Plan Well Guide’s new toolkit is that it highlights the importance of a multidisciplinary approach to advance care planning. An effective advance care plan – that is, a plan which facilitates medical substitute decision-making that is consistent with the incapable person’s actual values and preferences – depends on the collaborative efforts of a person’s lawyers, doctors, and substitute decision-makers. The Plan Well Guide and its new toolkit offer accessible ways for legal professionals, health care professionals, and their clients/patients to coordinate their efforts to make serious illness planning more effective. If a lawyer is interested in improving the quality of future medical decision-making and patient outcomes for their clients, the Plan Well Guide’s toolkit for legal practitioners is certainly worth looking into.
Thanks for reading!
Earlier this year, our colleague Doreen So, blogged in two parts (here and here) on the matter of PGT v Cherneyko. It is a blog that discusses a litany of failures by an attorney for property. While Doreen covered the facts in full, they are worth repeating here in part:
“Jean Cherneyko is a 90-year-old woman. Jean did not have any children of her own. Her closest known relative was a niece in the US. By the time of the PGT application, Jean was in a long-term care home. Prior to that, Jean lived alone in the same home that she had lived in since 1969. Jean had a friend named Tina who she had known for about five years. On August 15, 2019, Jean and Tina went to a lawyer’s office. Jean named Tina as her attorney for property and personal care. Jean also made a new Will which named Tina as the estate trustee and sole beneficiary of her estate. A week or so later on August 27th, Jean and Tina went to Jean’s bank where $250,000.00 was transferred to Tina […]”
The PGT applied to take over as guardian for property and, among other things, to set aside the gift to Tina. The court agreed and ordered the $250,000 returned to Jean on the basis of resulting trust.
In a novel approach to the law of gifts, the court in Cherneyko relied on Pecore to establish that the gift ought to be returned, saying: “The leading Canadian case on the law of gifts, the Supreme Court of Canada in Pecore v Pecore, 2007 SCC 17 (CanLII) at paras. 24-26 established that where a gratuitous transfer of property is found, there is a presumption of a resulting trust. The onus falls to the recipient to rebut the presumption.” In the court’s view, Tina failed to rebut the presumption.
But this represents a new application of the Supreme Court’s analysis and it’s worth revisiting Pecore.
In 2007, Justice Rothstein, writing for a unanimous court (Justice Abella concurring) looked closely at gratuitous gifts of joint bank accounts, between parents and children, and whether the presumption of resulting trust and advancement applied in modern times:
“The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.”
The decision in Cherneyko represents a significant expansion of the principles of Pecore by applying them to inter vivos gifts between unrelated adults. Traditionally, if the courts determine that a transferor lacked the requisite capacity, the gift is void as the transferor lacked the capacity to form the proper intention to gift. Ball v. Mannin, an almost 200-year-old UK case established the original test for granting a gift and held that a person had capacity if the person was “capable of understanding what he did by executing the deed in question, when its general purport was fully explained to him.” The Supreme Court has previously outlined a separate test in Geffen v Goodman Estate in 1991, examining the nature of the relationship itself, and applying a presumption of undue influence where there is the presence of a dominant relationship. While the failed gift in Cherneyko was ultimately returned under a resulting trust, it will be fascinating to see if other courts also continue this expansion of Pecore. We’ll keep you posted.
Thanks for reading!
Ian Hull and Daniel Enright