Category: General Interest

19 Jul

Missing Heirs and Probate Genealogy Going Digital?

James Jacuta General Interest Tags: , , 0 Comments

Ask anyone and they will say, among other things, that lawyers are known for following precedent. Well-established rules and procedures, written and unwritten ways of doing things, and decorum often guide conduct.  However, the last year has seen a veritable revolution in some areas of the law,  like the virtual signing of wills and affidavits. But, for the most part, the area of probate genealogy in Canada still follows traditional methods.

Probate genealogy involves finding missing heirs in cases where there is a will with a named beneficiary who cannot be located.  Also, in those cases where someone has died without a will and without known heirs.

Over the last decade,  genealogical research has been assisted by online databases making digital copies of documents available for viewing and research. But, in Canada, hardcopy original or certified copy vital statistic documents like birth and death certificates are still required in almost all cases when dealing with courts, financial institutions, or the Office of Public Guardian and Trustee. This is in contrast with some countries in the European Union where they have moved to entirely digital vital statistic records.

The pandemic has resulted in permanent changes in the court system like video trials and digital filing of documents with the clerk of the court. Law firms now use teleconferencing services for meetings regularly. Real estate agents now hold virtual showings of properties for sale. Doctors now do online medical consultations. Banking is now done on a mobile phone app. The acceptance of digital copies of vital statistic documents will accelerate the locating of missing heirs and assist in proving that they are indeed related to the family being researched without delays associated with obtaining hardcopy documents or physically having to research in archives. This would be beneficial as often hundreds and even thousands of historical records have to be analyzed. In time, it may be that digital practices will also be responsibly adopted in the area of probate genealogy, as in other areas of the law recently.

Thanks for reading.

James Jacuta

08 Jul

OPGT as Temporary Guardian: The Public Guardian and Trustee v. Willis

Doreen So General Interest, In the News, Litigation Tags: , , , , , 0 Comments

I blogged on the Ontario Public Guardian and Trustee’s Guardianship Investigations Unit, and the OPGT power to bring an application for a temporary guardianship under certain circumstances earlier this week.  In The Public Guardian and Trustee v. Willis et al, 2020 ONSC 3660, the OPGT brought an application for Andrew Willis to pass his accounts with respect to his management of his mother’s Ruth Irene Willis’ property, and for an order that the OPGT be appointed as Mrs. Willis’ temporary guardian of property which would replace Andrew Willis as Mrs. Willis’ POA.

Mrs. Willis suffers from moderate to severe dementia and she lives in MacKenzie Place Nursing Home.  Mrs. Willis is a widow and Andrew is her only living child.  Mrs. Willis’ only asset is her home in Richmond Hill.  There are four mortgages registered against the home, which total $3.35M.  However, according to the last appraisal, the home was only estimated to be worth $2.8M after various renovations are complete.  The extent of the mortgages and Andrew’s role in arranging them, and as a personal guarantor in the event of Mrs. Willis’ default, was the basis for the OPGT’s accounting request.

What led to the OPGT to seek to replace Andrew as Mrs. Willis’ substitute decision maker was serious enough to convince the Court:

  • Andrew was found to be consumed by the home renovations when Mrs. Willis’ basic living expenses at the nursing home were left unpaid. The Court was particularly concerned that,

“Andrew does not do what he says he will do. He made many promises to MacKenzie Place to pay his mother’s arrears but did not. There are still arrears owing of $15,000. Andrew has not made his mother’s needs a priority. As a result, his mother is living in a ward with other residents in a facility which has experienced COVID-19 cases and with minimal services. Mrs. Willis’ quality of life must be improved.”

  • Willis also owes unpaid taxes to the Canada Revenue Agency. Her only bank account was found to have been used for Andrew’s personal expenses, such as his Granite Club fees, groceries, gas, alcohol, hockey equipment and his child support payments before the account was frozen by RBC.
  • Despite Andrew’s efforts in listing the property for sale, the only offer that Andrew had received was less than the total mortgages.
  • Andrew had also failed to make an application for survivor’s pension to increase Mrs. Willis’ monthly income.

The Court ultimately gave Andrew another 1.5 months to sell the house as Mrs. Willis’ attorney for property before the OPGT takes over regardless of whether the home has sold.  If you are interested in learning more about Willis, click here for Rebecca Rauws’ blog on the accounting aspects of this case.

Thanks for reading!

Doreen So

06 Jul

Investigating Britney’s Allegations in Ontario: the OPGT Investigations Unit

Doreen So General Interest, In the News, Litigation, Uncategorized Tags: , , , , , 0 Comments

Britney Spears’ recent statement to the Court on the abuses of her conservatorship has stunned the world.  Spears spoke of being abused and traumatized by her conservators.  Spears gave examples of being forced to do a concert tour against her wishes and under threat of breach of contract; and of being prevented from marrying and having more children of her own.

Spears’ father, who is at the center of this controversy as one of Spears’ conservators for the last 13 years, has filed his own petition for the Court to investigate the allegations in Spears’ statement.  Spears’ father has also expressed criticism over Spears’ conservator of person care, Jodi Montgomery, to which Ms. Montgomery has made the following statement according to Variety,

“…conservatorships in California are subject to the strictest laws in the nation to protect against any potential abuses, including a licensing requirement for all professional fiduciaries. Ms. Montgomery is a licensed private professional fiduciary who, unlike family members who serve as conservators, is required to follow a Code of Ethics…Private professional fiduciaries often serve in cases as a neutral decision-maker when there are complex family dynamics, as in this case…

Because Ms. Montgomery does not have any power or authority over the conservatorship of the estate, every expenditure made by Ms. Montgomery for Britney has had to be first approved by Jamie Spears as the conservator of the estate…Practically speaking, since everything costs money, no expenditures can happen without going through Mr. Spears and Mr. Spears approving them.”

There is similar provision in Ontario for how guardians of property are required to work with the guardians of person.  Section 32(1.2) of the Ontario Substitute Decisions Act, 1992 provides that, “A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions.”

File Stack and Magnifying Glass

The Ontario Substitute Decisions Act, 1992 also imposes a positive duty on the Public Guardian and Trustee (“OPGT“) to investigate “any allegation that a person is incapable of managing property or personal care and that serious adverse effects are occurring or may occur as a result” (see sections 27 and 62 of the Act).  According to the OPGT,

“With respect to finances, “serious adverse effects” includes “loss of a significant part of one’s property or failure to provide the necessities of life for oneself or dependents”. Incapacity may, for example, lead a person to give large sums of money away to strangers or to face loss of their home for failure to pay taxes. An incapable person may face starvation or eviction if they cannot look after paying rent or buying food.

With respect to personal welfare, “serious adverse effects” includes “serious illness or injury, or deprivation of liberty and personal security”. Incapacity may, for example, result in a person being unable to remove themselves from a very dangerous situation or to take steps to stop physical or sexual abuse.

[…]

Throughout the investigation, the investigator tries to facilitate solutions that will serve to protect the person without the need for a formal court process. Respect for the dignity of the person and objectivity about the circumstances are paramount considerations in every investigation.”

If a formal court process is found to be necessary, the OPGT will make an application to the Court for a temporary guardianship, and the OPGT can also apply to make the temporary guardianship permanent.  The OPGT is a branch of the Ontario Ministry of Attorney General, and they are meant to provide Ontarians with protective safeguards.  While this specific investigative process is not technically meant to terminate an existing guardianship, it can temporarily or even permanently place the OPGT in charge as guardian of property and person.

Thanks for reading!

Doreen So

05 Jul

Terminating Guardianships: Zheng v. Zheng, 2012 ONSC 3045

Doreen So General Interest, In the News, Litigation Tags: , , , , , 0 Comments

Britney Spears has been the subject of worldwide discussion for most of her life.  The attention on Spears is once again at its height after Spears gave evidence in Court to contest and lay bare the abuses that she has suffered in the course of her 13-year conservatorship. You can read a slightly edited transcript of Spears’ 24-minute statement here.

Spears has been under a conservatorship ordered by the Los Angeles Superior Court since 2008.  The order was made following a number of publicly scandalous events such as the time when Spears was photographed driving with her baby on her lap, and the time when she was photographed shaving her own head.  Spears’ father, Jamie Spears, and a lawyer were named as her conservators which gave them the authority to make decisions about Spears’ property and health.  Spears’ conservatorship was routinely back before the Court and extensions of the arrangement were granted throughout its 13-year history.  A full timeline can be found here.

Recently, in 2019, Jamie Spears sought to extend the conservatorship across multiple states so that he would be similarly authorized to deal with Spears and her property in Louisiana, Hawaii, and Florida.  That same year, Jamie Spears stepped down as the primary conservator after criticisms from Spears’ 14-year old son.  In 2020, Spears sought to remove Jamie Spears as one of her conservators all together.  Fast forward to now, Spears tells Los Angeles probate Judge Brenda Penny that she didn’t know she could petition to end the conservatorship, and that she wanted it to end without being evaluatedDays later, on June 30th, an old application to remove Jamie Spears was dismissed and a wealth management company, Bessemer Trust, was appointed to act as a co-conservator with Jamie Spears, although Spears is not precluded from bringing new applications in the future.

Here in Ontario, our version of a conservatorship is known as a guardianship under the Substitute Decisions Act, 1992.  A petition to terminate a guardianship can be brought by motion under section 28 of the Act.  This was done in one instance by Y. Zheng in Zheng v. ZhengZheng v. Zheng, 2012 ONSC 3045, is a Division Court decision by Justice Wilton-Siegel which granted Zheng leave to appeal an order that she be assessed as a part of her motion to terminate her guardianship.

In Zheng, Zheng was found to be incapable of managing property and personal care in 2007 and Zheng’s brother became appointed as her guardian.  When Zheng applied to terminate the guardianship in 2012, Zheng submitted four current assessments, all of which found Zheng to be capable.  The assessments were done by a qualified assessor under the Act, a staff psychiatrist at CAMH, and an in-home occupational therapist.  The psychiatrist, in particular, had found that Zheng is currently capable with respect to treatment of her psychiatric condition, which was diagnosed as a psychotic disorder due to a head injury.

Zheng’s brother opposed the termination.  Zheng’s brother had the assessments reviewed by the same neuro-psychologist who assessed Zheng in his 2007 guardianship application and concerns were raised about the sufficiency of these new assessments.  Thereafter, Zheng retained her own neuro-psychologist to do conduct the same review, and Zheng’s neuro-psychologist came to the opposite conclusion in Zheng’s support.  Given the conflicting review, Zheng’s brother brought a motion for Zheng to undergo a further assessment by an assessor of his choice. This was ordered by Justice B. O’Marra, and leave to appeal this order was granted by Justice Wilton-Siegel.  Unfortunately for us, there does not appear to be any further reported decisions in this matter and I do not know if the assessment appeal or the broader motion to terminate was pursued further.

At the end of the day, I hope Spears’ conservatorship will be resolved to Spears’ satisfaction.  It may very well be that an evaluation of some sort will be required on Spears’ part but, like Zheng, perhaps Spears’ evaluations can be done on her own terms.

Thanks for reading!

Doreen So

02 Jul

Canada Day, 2021

Paul Emile Trudelle General Interest Tags: , 0 Comments

“July 1, not being a Sunday, is a legal holiday and shall be kept and observed as such throughout Canada under the name of ‘Canada Day’.

When July 1 is a Sunday, July 2 is a legal holiday and shall be kept and observed as such throughout Canada under the name of ‘Canada Day’.”

So mandates ss. 2(1) and (2) of the Holidays Act, R.S.C., 1985, c. H-5.

Canada Day became Canada Day on October 27, 1982. Prior to that, the day was said to be “Dominion Day”, which was officially recognized as a holiday in 1879 by way of The Dominion Day Act, 1879. Before that, the day did not have a name. However a proclamation was issued on June 20, 1868 whereby the Governor General proclaimed: “I do hereby enjoin and call upon all Her Majesty’s loving subjects throughout Canada to join in the due and proper celebration of the said Anniversary [of the forming of the Dominion of Canada] on the said FIRST day of JULY next.”

As Suzana Popovic-Montag observed in her blog of July 1, 2015, Canada Day, is a commemoration of the confederation of Upper Canada, Lower Canada, New Brunswick and Nova Scotia. Contrasted with the 4th of July celebrations to the south, “Canada Day is less of a celebration of our collective self-assertion to obtain our autonomy by force and more of a celebration of our ability to come together, our ability to work together and even our ability to live together – which is a really nice thing to celebrate.”

That is a wonderful sentiment. However, we still have a lot of work to do on improving our abilities to come together, work together and live together. The job is not done, and Canada faces many issues.

Take some time to celebrate Canada this weekend, and also take some time to contemplate the issues faced by many and the need for all of us to focus on how we can better work, live and come together.

Have a great weekend.

Paul Trudelle

25 Jun

Text Messages and Signatures

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

Can a text message be tantamount to a signed acknowledgment?

Yes, according to the recent Ontario Divisional Court decision in 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi.

There, the court considered the application of certain provisions of the Limitations Act, 2002. Essentially, under the Act, a claim must be started within two years of the act or omission giving rise to the claim. However, under s. 13 of the Act, the date for a claim for payment can be extended where the debtor acknowledges the debt to a creditor IN WRITING and SIGNED BY THE PERSON MAKING IT OR THE PERSON’S AGENT.

In Edges, a contractor sued for money owing for renovation work. The last payment under the contract was made in March 2016. The claim was not commenced until May, 2018, and the defendant argued that the claim was statute-barred. However, the defendant texted the contractor in June, 2016, saying “The balance will be paid once everything is completed as per your agreement. No payment will be made until everything is clear. I’m going to hire a third-party inspector and their fees will be deducted from your payments too.”

The contractor argued that this was an acknowledgment of the debt, and therefore extended the limitation period. The defendant countered by arguing that the text was not signed, and therefore did not have that effect. The Small Claims Court judge and the Divisional Court disagreed.

On the issue of whether the text satisfied the statutory requirement that the acknowledgement be “signed”, the Divisional Court noted that there was no issue as to whether the text was authentic, or sent by the defendant. The Divisional Court held:

  1. The requirement of a signature is grounded in concerns of authenticity. As there was no issue with respect to the authenticity of the text, the underlying purpose of the signature requirement was satisfied.
  2. In any event, the Divisional Court concluded that the text was “signed”, albeit not in the traditional sense. The text was sent from the defendant’s cell phone. The phone had a unique phone number, and “other unique identifiers associated with … [the defendant’s] phone, including, without limitation, an International Mobile Equipment Identifier (IMEI) number. These unique identifiers provide, in effect, a digital signature on every message sent by the user of that particular device.”

The Divisional Court observed that “The world is changing. Everyone knows that. We live in a digital world now, much more than was the case when the Act came into force in 2002. It is incumbent upon the court to consider not just traditional means of affixing one’s signature to a document, but other, more modern means, including digital signatures.”

The world is indeed changing. Text with caution.

Have a great weekend.

Paul Trudelle

22 Jun

How Can We Combat Ageism in Law?

Natalia R. Angelini Elder Law, Estate Litigation, General Interest, Uncategorized Tags: , 0 Comments

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,

Natalia Angelini

09 Jun

Elder Law Day

Hull & Hull LLP Elder Law, General Interest Tags: , , , 0 Comments

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.

09 Jun

What to do After a Death of a Loved One

Ian Hull General Interest Tags: , , 0 Comments

It is a scenario no one wants to contemplate, but there is a chance someone close to you could suddenly die due to an accident or natural causes. Here is some general guidance about what to do in that situation.

You can arrange a traditional funeral with the assistance of your local funeral home, where staff are experienced at guiding grieving families through the process. Alternatively, you can make all the arrangements yourself. For advice, consult the Bereavement Authority of Ontario’s Guide to Death Care in Ontario for general information when making arrangements. This informative guide covers all aspects of what happens after someone dies and is a good reference even for those who choose a traditional funeral.

One of the first choices you will have to make is how to handle the body: burial, cremation or alkaline hydrolysis (AH). With AH, a heated solution of water and potassium hydroxide or sodium hydroxide, along with pressure and agitation, reduces a body to components of liquid and bone. The resulting bone fragments are dried and reduced to a substance resembling cremated ashes.

The death must be registered by completing two documents. A Medical Certificate of Death completed by the attending doctor or a coroner outlines the cause. A Statement of Death must also be completed that details personal information about the deceased, such as family history, age at death and place of death. This is usually completed by the funeral director, in consultation with a family member.

The documents are submitted to the municipal clerk’s office, usually in the municipality where the death occurred.

You will need to get a burial permit in the municipality where you register the death. This permit is needed before funeral services can be performed, including cremation or AH.

If the death occurred outside Ontario but the burial will take place in the province, you will need a burial, transit or removal permit from the jurisdiction where the death occurred.

Another important document is a death certificate. The estate trustee will need this to settle the estate and to deal with government services. This certificate can be obtained online, with more information here.

You may already know if the person had a will, which in many cases bequests everything to the surviving spouse. If you do not know if there is a will, contact the estates division of the local Ontario court.

Private institutions – banks, insurance companies, pension funds – have to be contacted to inform them of the death, along with governmental organizations. If the deceased had been issued an accessible parking permit, you have 30 days to return that by mail to ServiceOntario.

If there is a provincial driver’s licence it must be cancelled. You can apply for a refund if there are six months or more remaining on the licence before it expires, as long as there are no outstanding fines. This can be done at any ServiceOntario centre.

Federal agencies must be contacted. That would include cancelling any benefit paid out through Old Age Security, Canada Pension Plan or Employment Insurance. Be sure to be in touch with the Canada Revenue Agency and provide them with the deceased’s social insurance number, so that any outstanding taxes can be paid or that any benefits can be transferred to a survivor. If the deceased owed money to the National Student Loans Service centre, that debt will be forgiven.

The executor of the estate is also responsible for filing an income tax form on behalf of the deceased person and contacting the Family Responsibility Office if the deceased paid child or spousal support.

For more details about the responsibility to notify federal government services click here. More information about similar responsibilities you have to the Ontario government can be found here.

The death of a loved one can be devastating, but the resources listed above should help you get through it.

Take care and have a great day.

Ian Hull

03 Jun

Protecting Long-Term Care Home Residents by Promoting Immunization

Arielle Di Iulio Elder Law, General Interest, In the News, Public Policy Tags: , , 0 Comments

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.

Thanks for reading!

Arielle Di Iulio

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