Category: General Interest

07 Apr

Don’t Count Your Chickens (or Your Inheritance) Before They’ve Hatched

Suzana Popovic-Montag Estate Planning, General Interest Tags: , , , 0 Comments

Wage increases are not proportionate to the astronomical rise in the cost of living. As a result, it is not all that uncommon for some to live “pay cheque to pay cheque” – especially those millennials just beginning their careers, starting a family, and hoping to buy property. Even those who have attended graduate programs (many of whom spend several years paying off the massive debt accrued by such ambitions), have double income earning families, and who hold esteemed positions in the workforce, still struggle to put aside any significant amount of money for retirement. Consequently, many young people make the unwise mistake of counting on their impending inheritance to fund their retirement.

According to Ipsos Reid survey, 35% of Canadians are relying on an inheritance to fund their futures. Although baby boomers as a generation possess great wealth, there are several reasons why that fortune might not land in the hands of millennials.

Firstly, individuals might deplete their assets while still living. Given the steady increase in life expectancy, individuals are living longer and correspondingly, their wealth must last longer. For some, this might mean living lavishly in their retirement years and travelling the world. Others who aren’t so lucky might be plagued by illness requiring extensive care. In the latter scenario, savings can be quickly consumed by these unforeseen health care expenses. For context, a private room at a long-term care home in Ontario costs on average $2,640 a month. Retirement homes, not subsidized by the government, cost approximately $3,204 a month if an individual requires assistance.

Another reason why an inheritance should not be counted until it is received is due to the volatility of the stock market. An unexpected downturn in the stock market, or a poor investing decision, could result in a retirement portfolio plummeting and thus no inheritance left to pass along.

Lastly, some parents might share the same beliefs as investing icon Warren Buffett, who infamously remarked that he would leave his children “enough money so that they would feel they could do anything, but not so much that they could do nothing.” A 2014 study by the Insured Retirement Institute confirmed that although in the past over two-thirds of baby boomers reported that they would leave their children an inheritance, this number dropped to just 46% in 2014. It appears that more parents might agree with Buffet’s philosophy than expected. As a result, it seems wise to consider your potential inheritance as a welcome bonus rather than a given.

Thanks for reading – and enjoy the rest of your day!

Suzana Popovic-Montag & Tori Joseph

16 Mar

An Update on the CaseLines Pilot Project

Sanaya Mistry General Interest, In the News, Litigation Tags: , , 0 Comments

What is CaseLines?

As noted in the Supplementary Notice to the Profession and Litigants in Civil and Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment, CaseLines is a user-friendly cloud-based document sharing e-hearing platform for remote and in-person court proceedings. It is being used to provide a platform for parties to upload electronic copies of their documents for review by all participants before and during a court hearing. It is important to note that parties are still required to file materials in accordance with the applicable rules of Court and Notices to the Profession.

Parties have new responsibilities when using CaseLines, including, among other things, adding their email addresses to all court documents, using a specific document naming method, and uploading each document to be marked as an exhibit during the hearing separately.

In addition, while there are many benefits to using CaseLines, some that are particularly helpful are that users can make private notes and highlight documents, terms can be searched in all uploaded documents, and parties can navigate documents and direct opposing counsel and the court to view specific sections. These features can increase efficiency and make it easier for all parties and the court to quickly navigate through specific documents during a hearing.

TimeLine

The pilot project began in August 2020 for select civil motions and pre-trial conferences in Toronto. The goal was to gradually expand to other practice areas and court locations.

In Toronto, CaseLines was expanded to select family matters in December 2020 and select criminal matters as of February 8, 2021. Effective March 1, 2021, CaseLines started being used for select civil, family and criminal proceedings in the East and Northwest Regions. It is anticipated that province-wide expansion of the CaseLines pilot will continue throughout the summer and that all judicial regions will be using CaseLines by the end of summer 2021.

Resources

Since the CaseLines pilot was launched in August 2020, there have been many helpful resources that have been published to assist parties in learning how to use this new process, some of which have been included below:

  1. A demonstration of CaseLines;
  2. An 18 Minute Tutorial on how to access, update, invite people and review evidence for cases;
  3. Frequently Asked Questions About Thomson Reuters CaseLines;
  4. CaseLine Hearings – Tips for Counsel and Self-Represented Parties; and
  5. Sydney Osmar’s article on MAG’s Pilot Project with CaseLines.

Thank you for reading!

Sanaya Mistry

12 Mar

Paying Bequests to Minors

Paul Emile Trudelle General Interest, In the News, Wills Tags: , , 0 Comments

There have recently been many proposed changes to estate laws in Ontario under the Accelerating Access to Justice Act, 2021. The Bill passed Second Reading on March 2, 2021, and was referred to a Standing Committee.

We have blogged on many of these proposed changes. See “Modernizing the Succession Law Reform Act”, and “Ontario Raises Small Estate Limit to $150,000 – Now What?”.

One of the proposed changes is an increase in the amount of money that can be paid to a parent of a child when money is owed to the child.

As a starting point, it must be kept in mind that a parent of a minor is not the guardian of the child’s property unless specifically appointed as such by the court. A parent is not authorized to deal with a child’s property.

However, if a person is under a duty to pay money or deliver personal property to a minor (such as an Estate Trustee where there is a bequest to the minor), the person may pay the amount owing or deliver the property to a parent with whom the child resides, per s. 51(1) of the Children’s Law Reform Act (“CLRA”). However, s. 51(1.1) of the CLRA presently limits the amount payable to the parent to $10,000. If the amount payable is more than $10,000, other steps will have to be taken, such as the appointment of a guardian for the child, or the payment of the funds into court.

Under the proposed revisions to the CLRA and its regulations, this amount is to be increased to $35,000. Further, the provision will specifically apply to money payable under a judgment or court order or on an intestacy. Currently, amounts payable under a judgment or court order were specifically excluded.

Under the CLRA, a parent who receives funds on behalf of a minor has all of the responsibilities of a guardian for the care and management of the money or property. The parent may be required to account, and must transfer the money or property to the minor when they turn 18.

Thank you for reading. Have a great weekend.

Paul Trudelle

03 Mar

Bad Vibrations:  When a Guardianship Is Suspect

Ian Hull General Interest, In the News Tags: , , , , , , 0 Comments

Amazon Films has recently released a very dark new film called “I Care A Lot”, starring Rosamund Pike and Peter Dinklage. It’s the story of a crooked legal guardian who drains the savings of her elderly wards and meets her match when a woman she tries to swindle turns out to be more than she first appears.

It’s not an instant classic and it’s total fiction, but it got us thinking about real-life scenarios where a manipulative guardian may be taking advantage of someone and what can be done. We were instantly reminded of the saga of Beach Boys legend, and “Inventor of California,” Brian Wilson.

In May of this year, it will be 55 years since the release of the solid gold classic, Pet Sounds. A testament to the genius of Brian Wilson, Pet Sounds paved the way for other classic records like Sgt. Pepper’s Lonely Hearts Club Band. But a grueling creative and recording process and an abundance of recreational drugs saw Wilson suffer a nervous breakdown in 1965 and he wouldn’t tour with the band again until 1983. Wilson began suffering auditory hallucinations in mid-1965 which persisted throughout his life; he also became increasingly paranoid and anti-social, leading to a disintegration of relations between him and his bandmates, culminating in the famous episode where he refused to get out of bed for two years.

In an effort to assist Wilson with his myriad of physical and psychological issues, Wilson’s family enlisted the services of California psychotherapist Dr. Eugene Landy – And a dark story took a darker turn. For the next nine or ten years, Landy exploited and manipulated Wilson – entering into business contracts worth 25% of future record earnings, while also administering psychotropic drugs, moving into Wilson’s Bel Air estate, supervising his every move, and limiting any contact with the outside world. According to this Diane Sawyer interview from October 10, 1991, Landy was billing Wilson up to one million dollars a year, including $25,000 a month for “vitamins.”

It took nine lawsuits and several years for Wilson to be released from Landy’s “care,” and Wilson has been doing much better over the last few decades, but we still wondered: What if Wilson lived in Ontario and didn’t have any family, or Diane Sawyers, trying to fight for his freedom? What if Landy or the unscrupulous guardian in I Care A Lot were operating in Ontario?

Enter the Office of the Public Guardian and Trustee (the “PGT”).

While any concerns of physical or mental abuse should immediately be brought to the attention of local authorities as soon as possible, the PGT also has significant investigative and enforcement powers under the Substitute Decisions Act. Where financial concerns are present, the PGT has investigative powers under section 27 and where the integrity of the person is at issue, section 62.

Both sections recognize that “serious illness or injury, or deprivation of liberty or personal security, are serious adverse effects” and the PGT shall investigate. The PGT is provided extensive powers that include entry without a warrant, assistance of the police, as well as bringing emergency applications before the court to intervene as a temporary guardian.

So while Brian Wilson (and more recently Britney Spears) made headlines, there are strong police and government mechanisms in place to protect vulnerable people from abuse and exploitation. But the one thing that Wilson (and Ms. Spears) had, was some kind of connection to people. Isolation from family, friends, or community, is one of the most dangerous risks to vulnerable people.

Anyone can report a concern, either to the police, or to the PGT directly.

Thanks for reading,

Ian Hull and Daniel Enright

18 Feb

The GameStop Saga, Part II – Prudent Investing

Garrett Horrocks General Interest, In the News Tags: , , , 0 Comments

In Tuesday’s blog, I scratched the surface of the recent battle between titans of Wall Street and a social media community over shares of GameStop, a brick-and-mortar video game retailer.  The enormous volatility seen in GameStop’s share price, fluctuating between $20 and $350 in a matter of only a few weeks, led to some investors profiting handsomely, leaving others, including certain institutional investors, to foot the bill so to speak.  Today’s blog discusses the obligations of a trustee to prudently invest trust capital and to generally avoid high-risk, high-reward strategies unless specifically instructed.

Section 27(1) of Ontario’s Trustee Act provides that a trustee investing trust assets “must exercise the care, skill, diligence and judgment that a prudent investor would in making investments” – colloquially known as the Prudent Investor rule.  A further subsection of the Trustee Act, section 27(5), sets out a non-exhaustive list of criteria that a trustee is to consider when making investment decisions which include, among others, the expected total return on investment.

A savvy but risk-prone hypothetical trustee might have viewed the GameStop saga as an opportunity to earn significant returns for the benefit of the trust.  Of course, had such a trustee “gotten in early” when the share price was still low and also correctly predicted the meteoric rise, the trust in question might well have enjoyed a capital return many times the size of their initial investment.  Great!

However, the opposite consideration is relevant to any discussion of a trustee’s obligation as a prudent investor.  What if the trustee took steps to invest in GameStop or any other volatile security, without reasonable justification for doing so, and suffers substantial losses? What recourse, if any, is available to the beneficiaries of a trust that suffers such losses?

In the ordinary course, a trustee may be personally liable for any investment losses as a result of imprudent investment decisions. Whether the trustee committed a breach of his fiduciary duty by choosing to invest in high-risk, high-reward securities is a nuanced question.  In carrying out their obligation as a prudent investor, a trustee must consider several factors, including:

  1. The terms of the trust instrument or Will including any investment guidelines contemplated by the grantor or testator;
  2. The guidelines of any investment plan or strategy relied on by the trustee in making investment decisions, including any such plan prepared by a professional advisor; and
  3. The nature and extent of the investment made and the loss suffered.

A consideration of the factors above will determine whether a trustee’s actions constitute a breach of fiduciary duty.  Hypothetically, a trustee may be directed by the terms of the governing instrument to invest a certain portion of the capital into specific types of assets, which could include volatile securities, with asset diversification as a main goal.

Although such investments might not ordinarily be viewed as “prudent”, section 27(9) of the Trustee Act provides that a trustee is not authorized to act in a manner that is inconsistent with the terms of the governing instrument.  Although the trustee has some discretion in terms of the choice of investment, they may nonetheless be directed by the instrument to engage in risky transactions.

As such, the risk of personal liability to a trustee who was directed to invest a small share of the total capital of a trust into high-risk securities, as compared to a trustee who unilaterally decides to invest half of the trust capital into similar assets, will be considerably different.  Provided the conduct of the trustee is in accordance with the directions and reasonable professional guidance offered to them, it is unlikely that a trustee will be personally liable for investment losses.

Thanks for reading.

Garrett Horrocks

12 Feb

It’s A Will! It’s A Testament! It’s a Last Will and Testament!!

Paul Emile Trudelle General Interest, Wills Tags: , , 0 Comments

A recent question on Jeopardy! led me to look into the phrase “last will and testament”.

We all know what a will is. It is a legal document that sets out the testator’s wishes with respect to the disposal of his or her property upon his or her death. A testament is the same thing.

Commonly, a will is referred to as a “last will and testament”. Why the apparent redundancy?

The phrase is a historical reference to a period when English law and French law language were both used for maximum clarity. The phrase is a “legal doublet”. Other legal doublets include “cease and desist”, “part and parcel”, “terms and conditions” and “break and enter”. The list goes on and continues.

Diving deeper, the legal doublet “last will and testament” is an “irreversible binomial”: words that must be used together in a certain order. One would never refer to a “testament and last will”, much as one would never refer to “cheese and macaroni”, “abet and aid” or “void and null”.

Another theory as to why we refer to a “last will and testament” is that, historically, a will dealt with real property while a testament dealt with personal property. This theory has been debunked.

Still another theory is that, historically, lawyers and clerks were paid by the word. Why use one word when you can get paid for several?

Thank you for reading. Have a safe long weekend. As a client told me, stay positive and test negative!

Paul Trudelle

11 Feb

Could the pandemic override a patient’s rights under the Health Care Consent Act?

Stuart Clark General Interest Tags: , , , , , , , , , , , , , , 0 Comments

The COVID-19 pandemic has thrown much of what we take for granted on its head. If recent reports are accurate we can potentially add to that list an individual’s right to control their own medical treatment as codified in the Health Care Consent Act (the “HCCA”).

There have been reports in the news recently about advanced planning currently underway about what would happen to the provision of health care if the worst case scenario for COVID-19 should occur and the hospitals are overwhelmed. Included amongst these reports are discussions that certain provisions of the HCCA may temporarily be suspended as part of a new triage system which would allow medical professionals to prioritize who received treatment.

Section 10 of the HCCA codifies that a health care practitioner shall not carry out any “treatment” for a patient unless the patient, or someone authorized on behalf of the patient, has consented to the treatment. The Supreme Court of Canada in Cuthbertson v. Rasouli, 2013 SCC 53, confirmed that “treatment” included the right not to be removed from life support without the patient’s consent even if health practitioners believed that keeping the patient on life support was not in the patient’s best interest. In coming to such a decision the Supreme Court of Canada notes:

“The patient’s autonomy interest — the right to decide what happens to one’s body and one’s life — has historically been viewed as trumping all other interests, including what physicians may think is in the patient’s best interests.”

The proposed changes to the HCCA would appear to be in direct contradiction to the spirit of this statement, allowing health care practitioners to potentially determine treatment without a patient’s consent based off of the triage criteria that may be developed. This “treatment” could potentially include whether to keep a patient on a lifesaving ventilator.

Hopefully the recent downward trend for COVID-19 cases holds and the discussion about any changes to the HCCA remains purely academic. If not however, and changes are made to the HCCA which could remove the requirement to obtain a patient’s consent before implementing “treatment”, you can be certain that litigation would follow. If this should occur it will be interesting to see how the court reconciles any changes to the HCCA with the historic jurisprudence, for as Rasouli notes beginning at paragraph 18 many of the rights that were codified in the HCCA previously existed under the common law, such that any changes to the HCCA alone may not necessarily take these rights away for a patient.

Thank you for reading.

Stuart Clark

10 Feb

Seniors’ Campuses of Care

Suzana Popovic-Montag General Interest, Public Policy Tags: , , 0 Comments

When Covid-19 swept across Canada in March of 2020, it proved to be a virus that does not discriminate between young and old or rich and poor. However, this virus took particular hold of our long-term care homes. In doing so, Covid-19 shed a glaring light on an already broken system. It exposed a deep-rooted and systemic problem. It revealed chronically understaffed homes with overworked caregivers, painfully lonely residents, and the innate need for social connection. It is amidst this bleak backdrop that advocates at Advantage Ontario have urged the provincial government to support more “Seniors’ Campuses of Care” (“Seniors’ Campuses”) across the province.

Seniors’ Campuses provide a range of housing options in a community-like setting, including: assisted living, affordable housing, retirement homes, and life leases. Seniors’ Campuses offer residents a variety of social programs as well as health supports. This model also offers elders continuity of care which, in turn, provides for a more stable environment and one that is conducive to developing deep relationships with fellow members of the community. As Jane Sinclair, Chair of the AdvantAge Ontario Board of Directors, stated, “they [Seniors’ Campuses]…are vibrant, age-friendly communities that promote friendships, social inclusion, mutual support, and positive aging.” Seniors’ Campuses give residents agency over their lives.

Not only do Seniors’ Campuses offer a vast array of benefits to their members, but the model also offers the government a cost-effective way to reduce the pressure on an already overwhelmed long-term care system. Members pay monthly fees to live on Seniors’ Campuses, which vary depending on the housing model they choose to reside in. Members are able to move from one model of housing to the next as their needs change. For example, if an individual was residing in an affordable housing unit and experienced a health deterioration, he/she could be transferred to assisted living. This integrated approach provides seniors with appropriate care and enables them to remain in the community and avoid unnecessary placement in long-term care homes for as long as possible. It is a model that encourages independence and allows seniors to maintain their dignity.

Thanks for reading… Have a wonderful day!

Suzana Popovic-Montag and Tori Joseph

 

05 Feb

Giving Back: Man Makes Substantial Bequest to French Village that Protected Him From Nazis in WWII

Paul Emile Trudelle General Interest, In the News, Wills Tags: 0 Comments

Eric Schwam died on December 25, 2020, at the age of 90. He died leaving a will that provided a substantial bequest to the French village of Chambon-sur-Lignon. The gift was in thanks for the village’s assistance to Schwam and his family who were sheltered in the village during World War II as they escaped Nazi persecution.

According to a news report in The Times of Israel, Schwam and his family, originally from Austria, were taken in by the village townsfolk. They were amongst over 2,500 Jews harboured by the village during World War II. Previously, the village was honoured by Israel’s Yad Vashem Holocaust Remembrance Center as “Righteous Among the Nations”. (According to the Yad Vashem website, 3,000 to 5,000 Jews were protected by the village.) The village has received other such honours.

Schwam’s family arrived in Chambon-sur-Lignon in 1943, and were hidden in a school. The family remained in the village until 1950. Schwam then left the village, and studied pharmacy.

The mayor declined to state how much was given to the village of 2,470 (as of 2017). However, it is estimated that the gift was of $2m Euros. The funds are to be used for educational and youth initiatives, including scholarships.

Sometimes good deeds go unpunished.

Have a great weekend.

Paul Trudelle

29 Jan

Pumping the Brakes on Legal Service Demands

Paul Emile Trudelle General Interest Tags: , , , 0 Comments

Many in the legal profession are stretched thin when providing legal services during the pandemic. Working from home often blurs the distinction between work and “not-work”. A co-worker recently told me that with her computer on in her kitchen, it is as if she is always working.  Adding issues of child-care and home-schooling, or caring for isolated seniors only serves to heighten the complexity of the lawyer’s life.

(Clearly, non-lawyers face these challenges as well: often to a greater degree. Many lawyers have the luxury of being able to continue to work. Others are not so lucky.)

A recent decision of Justice Myers acknowledges the heightened demands on lawyers, judges and court staff during the pandemic, and the effect that these may have on their health and well-being.

Briefly, the case involved a commercial lease issue. The landlord wanted to rent out space in a mall to a call centre. Another tenant in the mall objected, asserting that is had a right to consent to the lease, and that the call centre would change the retail nature of the mall.

The landlord entered into a lease with the call centre that had a conditional period expiring February 1, 2021, in order to allow the landlord to obtain a court determination of the tenant’s claim to a right to consent. A court date was set for January 29, 2021, but counsel for the tenant was not available. A hearing on Saturday, January 30 was proposed by Justice Myers. Counsel for the tenant resisted, saying that “while his firm has conducted a fair bit of work during the pandemic on weekends and evenings, they have ‘been encouraged to be alive to the effects of doing so on younger members of the team who have childcare commitments etc.’”

Justice Myers noted that the court makes efforts to accommodate business transactions and recognizes real-time schedules. However, of significance, the court must also recognize the realities of lawyers’ lives and well-being.

The court takes very seriously issues of health and wellness of practitioners, members of the judiciary, and court staff during the pandemic in particular. While lawyers and the courts are in a service business, there has to be a brake applied to service providers’ willingness to compete themselves (or their juniors) into unhealthy states in the ordinary course of business. Recognizing that young counsel and staff may have other responsibilities or just need down time does not impair access to justice provided that everyone understands the need to make personal sacrifices when truly urgent circumstances arise.

Ultimately, a hearing date of February 4, 2021, was set. “Absent urgency that was not voluntarily assumed, I find it to be in the interests of justice to grant the adjournment sought.”

It is good to see that the court is recognizing the demands being placed on those in the legal profession, and the increase in these demands as a result of the pandemic. Yesterday was Bell Let’s Talk Day. Their motto, “When it comes to mental health, now more than ever, every action counts” is particularly apt.

Have a great weekend.

Paul Trudelle

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