Category: Estate Litigation
In Ontario the courts have been rapidly adapting their practice and procedures in response to the COVID-19 pandemic. Beginning on July 6, 2020, the Superior and Ontario Court of Justice will now be further expanding its operations. The date is dependent on approval from the Chief Medical Officer of Ontario.
The Ministry of the Attorney General (“MAG“) has established an incremental plan to prepare courthouses to facilitate the return of full court operations in Ontario. MAG has announced that Phase One will be implemented on July 6, 2020 in a limited number of courthouses and courtrooms. Court operations will continue to expand with a targeted completion date of November 1, 2020.
I will briefly highlight some of the takeaways from MAG’s strategy for re-opening:
- Reopening of 74 courthouses and 149 courtrooms across Ontario;
- Workplace safety considerations are being implemented throughout courthouse and courtrooms including the installation of plexiglass barriers, hand sanitizer stations, and distance markers. There will also be increased screening procedures for those entering any courthouse and caps on the number of occupants in each room;
- Each courthouse will have risk assessment conducted so that the proper preventative measures can be put into place;
- Virtual hearings will continue as we gradually phase back to in-person appearances.
MAG has yet to clarify on the types of in-person court appearances that will be heard during Phase One. Since the declaration of the emergency, the Superior Court of Justice has heard many “urgent” matters, being motions, case conferences, and pre-trials. It is hoped that the types of matters that are to be heard will be expanded as a part of Phase One.
In the meantime, counsel should continue to utilize and embrace the new technologies offered by the Courts to schedule virtual hearings and integrate them into their regular practice. Rather than waiting for a complete re-opening of the Courts, lawyers should be prepared to “attend” virtual hearings in order to best serve clients and provide them with access to justice.
Thank you for reading and stay tuned!
The COVID-19 pandemic has changed the way the legal profession works at least on a temporary basis. In Ontario, lawyers are required to embrace technology to facilitate dispute resolution and to move files along. Mediations, discoveries, and Court hearings are being conducted virtually via videoconference. Today I will consider some of the benefits of remote mediation and then tips on how to master it.
- Cost – cost will inevitably be lower as it will be organized on an online platform.
- Convenience – The mediation can be arranged on short notice, as all parties can participate from their location of choice. Travel and the associated costs are no longer an issue. Participation of parties that might not have otherwise be available to participate in mediation may now be accessible.
Tips for Successful Remote Mediation:
- Ensure your client is set up with the proper technology: a computer equipped with webcam, microphone, and speakers. Lawyers cannot assume that every client has access to a computer and quick internet connection.
- Consider using a 3rd party provider such as Neesons Court Reporting & Mediation, to host the mediation. This provider can facilitate the movement of parties in and out of plenary and breakout rooms, summon the mediator, arrange a counsel-to-counsel meeting, and assist with technical issues. This will ultimately save the parties time and expense.
- Ensure your clients are aware of privacy and confidentiality within meeting rooms. Client comfort is essential for a successful mediation.
- A lack of personal interaction means that your client may not be able to warm up to a mediator, which often times is necessary for a successful mediation. An effective mediator will structure a meditation in a way to facilitate adequate confidential one-on-one communication with the parties to assist with resolving the limitations of working with a
mediator through a video link rather than in person.
- Take lots of breaks as attending virtual mediation is more tiring than in person.
Thanks for reading!
As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.
On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.
- The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
- Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
- On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
- Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
- Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
- Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
- Select motions;
- Select applications;
- Case management conferences;
- Pre-trial conferences; and
- Judicial settlement conferences.
Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.
Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.
Thanks for reading!
Find this blog interesting? Please consider these other related posts:
My last blog discussed recent steps taken by the legislature to modernize the administrative side of the practice of law in Ontario. The practical side has also seen a number of developments that have emerged as a direct result of the ongoing pandemic. Some of these efforts have been spearheaded by the courts directly, while others, such as the Estate Arbitration and Litigation Management initiative, have been developed by members of the Bar an in effort to continue moving matters towards a resolution despite limited court access.
A recent decision of the Superior Court of Justice provides some important commentary on the judiciary’s expectations of parties and counsel to adapt to the current reality using these tools and others so that files can continue to progress.
In Arconti v Smith, Justice Myers grappled with the competing views of the parties as to whether an examination for discovery ought to proceed by way of a videoconference. The defendant, who was to submit to examination, proposed that the examination proceed by way of videoconference given the social distancing guidelines in place.
The plaintiff objected on several grounds. Among other objections, the plaintiff argued that the defendant and their counsel ought to be in each other’s presence to ensure the process proceeded smoothly. Alternatively, the plaintiff argued that the fact of conducting an examination remotely would “[deprive] the occasion of solemnity” and would otherwise make it more difficult to assess the defendant’s demeanour as a witness. The plaintiff argued that the examination ought to be deferred until social distancing guidelines were lifted.
Justice Myers’ initial response to the plaintiff’s position was simple, yet persuasive: “It’s 2020.” He held that the parties have technological tools at their disposal to conduct examinations and other litigation steps remotely, and that the use of such tools was especially salient in the context of the social distancing guidelines. Although Justice Myers advised that the concerns raised by the plaintiff might be relevant in different circumstances, they were not at issue there.
Ultimately, Justice Myers held that the use of readily available technology should be part of the skillset required both of litigators and the courts, and that the need to use such tools was merely amplified, not created, by the pandemic. The plaintiff was ordered either to conduct the examination of the defendant by videoconference, or to waive their entitlement to conduct the examination altogether.
This decision provides a glimpse into the court’s expectations of litigants and counsel to move matters forward in spite of the social distancing guidelines and court closures. While the current directives and legislation cannot be used to compel a party to perform a particular litigation step by audiovisual means, one may read Arconti as suggesting that the courts will nonetheless expect the parties to consider the entirety of their skillset to move matters along so that they do not languish in litigation purgatory as a result of social distancing guidelines.
Once social distancing guidelines have been lifted, it will likely be some time before the courts have dealt with the matters that were adjourned between March and June and are in a position to hear new matters. Parties who are willing to use the tools at their disposal to move matters forward and avoid contributing to this delay may find themselves commended by the judiciary. Those who are resistant to adapt, on the other hand, may expose themselves to commentary from a judge, or possibly cost consequences for their client, depending on the circumstances.
If you are interested in learning more about litigation procedure and estate planning best practices in the time of COVID-19, please consult our information guide.
Thanks for reading.
The COVID-19 pandemic has resulted in temporary changes to the way that lawyers are able to practice law. For the time being, many of us and our staff are working remotely, avoiding in-person meetings whenever possible, and access to assistance through the courts is limited.
Processes such as examinations for discovery and mediations may not necessarily be postponed with the availability of online platforms through which they can be hosted, such as Zoom. However, an issue remains in how best to address procedural issues for which we would normally seek directions from the court.
For the time being, court dates are available only to provide assistance in respect of truly urgent matters. While some clients may consider the appointment of an estate trustee during litigation or timetabling issues to be urgent, it is unlikely that a judge will share this viewpoint absent compelling circumstances. While the scope of matters that can be heard by teleconference may expand after April 6, 2020, the ability of the courts to keep up with demand can be expected to be limited. Furthermore, once the courts resume operations, one can only expect schedules to fill up quickly as lawyers and clients try to make up for lost time.
Lawyers and our clients have a common interest in moving matters forward during this period of instability. To assist in this regard, I am spearheading an initiative that I have called Estates Arbitration Litigation Management (“EALM“).
What I see as being the key features of EALM can be summarized as follows:
- parties will enter into an EALM agreement that sets out the matters to be arbitrated, primarily being procedural and interim relief;
- senior members of the Bar will assist the parties as arbitrators in determining those issues agreed upon at a reduced hourly rate;
- if the decision of the arbitrator requires a court order to be effective (for example, the appointment of an estate trustee during litigation), the parties agree to file a consent motion in writing to obtain the necessary order; and
- the parties may return to court to address substantive issues once normal operations are restored or may elect to proceed to arbitration or mediation.
These measures have already been successfully employed by the Family Law Bar and we are grateful to Aaron Franks, Judith Nicoll, Martha McCarthy, and Gary Joseph for sharing their experiences in that regard. A link to a precedent draft agreement specific to EALM, as well as an information sheet that lawyers will be able to share with clients, will be added to the resources section of our website within the next couple of days, which will be the result of continued consultations with senior members of the Estates Bar.
Despite the unique challenges posed by COVID-19, it is important that we employ new measures to continue to move matters forward for the benefit of our clients and colleagues throughout the Estates Bar, and I am hopeful that EALM will become a timely and cost-effective tool in limiting the disruption to our practices in the coming weeks. If you have any comments regarding EALM, or are interested in introducing this into your own practice, please contact me at email@example.com.
Thank you for reading and be safe.
Many of us are familiar with the expression: “Time waits for no one.” We also previously blogged about the impact time has on all parties in litigation: “No one likes to see a limitation period applied to dismiss a claim.” (So says Justice Nakatsuru in the opening line of his decision in Sinclair v. Harris.)
In general, claims must be commenced in a timely fashion. If too much time passes–depending on the circumstances and nature of the claim–parties may be prohibited from commencing a lawsuit, or have their lawsuit dismissed, by what is known as a ‘limitation period’.
With the recent developments of COVID-19, however, the Lieutenant Governor in Council made an Order under s. 7.1 of Ontario’s Emergency Management and Civil Protection Act suspending limitation periods in Ontario. This suspension is retroactive to March 16, 2020. A copy of the Order can be found here.
What happens when the suspension is lifted? It will be interesting to see if limitation periods go back to existing the day this suspension is lifted, or if further legislation may be needed to deal with this issue. For now, it appears that “time” is waiting for everyone.
Thanks for reading!
An important and useful tool in any estate planning toolkit is the ability to transfer title to real property between spouses, which typically occurs for nominal consideration and/or natural love and affection. These types of transfers are recognized at law. In certain circumstances, transfers of this nature may be used by spouses seeking to defeat, hinder, delay, or defraud creditors. The Fraudulent Conveyances Act (“FCA”) provides the legislative authority to set aside transfers of property that are entered into with the intent to defeat the claims of a creditor.
Such was the case in Anisman v Drabinsky, 2020 ONSC 1197. On September 11, 2015, Mr. Drabinsky and his wife, Ms. Winford-Drabinsky, transferred their joint ownership of their home to Ms. Winford-Drabinsky alone (the “Drabinsky Property”). At the time of said transfer, Mr. Drabinsky had several unpaid judgments against him as well as ongoing monthly debt payments that were nearly double his monthly income. One such judgment, dated November 2018, was in favour of the Plaintiff for monies owed by Mr. Drabinsky.
In an effort to recover monies owed to him, the Plaintiff obtained a Certificate of Pending Litigation against the Drabinsky Property. It was not until April 2019 that the Plaintiff testified that he learned of the transfer through a title search conducted on Mr. Drabinsky in preparation for his examination in aid of execution respecting the unpaid judgment. On June 18, 2019, some three years and nine months after the impugned transfer of title, the Plaintiff commenced an action seeking to reverse the transfer of title in the Drabinsky Property.
In his defence, Mr. Drabinsky argued that the transfer itself was not fraudulent, but that in any event, the Plaintiff’s claim was statute barred given that the 2-year limitation period provided for in the Limitations Act, 2002, SO 2002, c. 24 (“Limitations Act”) had expired.
In considering the validity of Mr. Drabinsky’s limitation defence, the court considered two key principles regarding limitation periods: discoverability of claims and the applicable statutory authority. With respect to the latter, the court considered whether it was the 2-year limitation period pursuant to the Limitations Act, or the 10-year limitation period in the Real Property Limitations Act (“RPLA”), that applied. The RPLA applies to actions to “recover” land. The question then became, does an action to set aside a conveyance of real property fall within the category of claims to “recover land”?
The court ultimately found that it was the 10-year limitation period in the RPLA that applied to the present action. In reaching its decision, the court relied on the case of Conde v Ripley, 2015 ONSC 3342, which found that claims made to set aside a conveyance of real property under the FCA are on their face, a claim to recover land. The court went further to say, “the Legislature has seen fit to… differentiate between actions involving recovery of land and other types of actions” given that the Limitations Act addresses claims in contract or tort, while the FCA addresses the recovery of real property.
However, as identified in this article, this line of reasoning contradicts earlier decisions that differentiated between the recovery of land itself and the recovery of debts connected to that land (see Wilfert v McCallum, 2017 ONSC 3853 and the Ontario Court of Appeal case of Zabanah v Capital Direct Lending Corp, 2014 ONCA 872), leaving the law in a state of uncertainty.
Thanks for reading!
In its recent decision, Baran v Cranston, the Divisional Court provides a helpful summary of the principles applied by the court when determining if the appointment of an Estate Trustee During Litigation (“ETDL”) is appropriate.
As a starting point, the court outlines the Superior Court of Justice’s statutory authority to appoint an ETDL. Section 28 of the Estates Act provides that an ETDL may be appointed “pending an action touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any probate or grant of administration…” Additionally, Rule 75.06(3)(f) of the Rules of Civil Procedure expressly authorizes the court to appoint an ETDL on an application or motion for directions.
The court then looked to the jurisprudence for further support that an ETDL may be appointed even where the validity of a will is not in issue. In McColl v McColl, an ETDL was appointed, notwithstanding the fact that the validity of the will was not in issue. In McColl, the court ultimately appointed an ETDL “based on the conflict and the trustee’s lack of experience in managing a business.”
In Mayer v Rubin, the court set out that the appointment of an ETDL may be required (even where the validity of the will is not in issue) where the parties’ duties as fiduciaries are inconsistent with their ongoing litigation interests. The appointment of an ETDL will also be necessary where there is a trustee who is in an adversarial position towards a co-trustee or beneficiary, and who therefore, should not be left in charge of trust property.
After having reviewed the relevant statutory provisions and jurisprudence, the Divisional Court went on to note some of the factors that will be considered by the court in determining whether or not it should exercise its discretion to appoint an ETDL:
- whether a trustee may be a witness in the litigation;
- potential for conflict of interest;
- conflict between the interests of the trustees and/or beneficiaries;
- hostility between the trustees and/or beneficiaries;
- lack of communication between the parties; and
- evidence of settlement discussions that exclude some of the parties.
The Divisional Court also approved the lower court’s summary of the legal principles factored into its decision to appoint an ETDL, which included, among others:
- the court has broad and inherent powers to supervise the management of estates, and can draw upon its inherent jurisdiction (where appropriate) to protect parties so that justice can be done in the proceeding;
- the court must ensure that there is a level playing field between the parties, and the assets of the estate must be immunized from the tactics employed by litigating parties; and
- the appointment of an ETDL is not an extraordinary measure and the court should refuse the appointment only in the clearest of cases. The appointment of an ETDL will be “favoured by the court in the majority of cases of conflict between the trustee and beneficiaries unless the administration of the estate is particularly simple or straightforward.”
Thanks for reading!
In a recent Ontario Superior Court of Justice decision, the Court considered certain extrinsic circumstances surrounding the making of the Will, as well as the reading of the Will as a whole, in reaching a decision regarding its interpretation.
In Love v Wheeler 2019 ONSC 4427, a spouse of a deceased beneficiary sought a declaration that a beneficiary’s estate was entitled under a testator’s Will to an undivided half-interest in property and that the other beneficiary wrongfully appropriated it.
Frances Irene Wheeler died in 2012. She bequeathed a parcel of land to her two sons, Harold William Wheeler and Martin Douglas Wheeler. Her Will stated that this property was to go to Harold and Martin “jointly or the survivor of them”.
The Court grappled with the question of whether Frances meant to leave the property to Harold and Martin as joint tenants or as tenants in common. Certainly, in a joint tenancy, there would be a significant benefit to the survivor of the two brothers, as the other half interest would pass on a right of survivorship, rather than form a part of the deceased brother’s estate.
This is exactly what happened in this case. Martin died in 2015 and in April, 2017, Harold had the title to the property transferred into his own name, on the argument that it was owned by him and Martin, as joint tenants.
Deborah Love, Martin’s common-law spouse of 16 years, commenced an application before the Court, as against Harold. One of the grounds for Deborah’s position was that the extrinsic evidence surrounding the making of the Will, including a prior Will of February, 2009, supports a finding that Frances intended her sons to inherit the property as tenants in common.
The Court’s Decision
In reaching its decision, the Court emphasized its role in giving effect to the testamentary intention of the testator, as expressed in a Will. Justice Chozik gave consideration to the “armchair” rule, which requires a judge to place him or herself in the position of the testator at the time when the last Will was made, and to consider and weigh the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of her property.
Justice Chozik found that Frances intended to leave the property in question to her sons, as tenants in common. This intention was held to be clear from the Will when it is read as a whole, taking into account some of the extrinsic circumstances surrounding the making of the Will.
This decision certainly emphasizes how important it is that the Will clearly stipulates the terms of each bequest, particularly when it comes to large assets, such as real property.
Thanks for reading!
Find this blog interesting? Please consider these other related posts:
In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
Thank you for reading,