Category: In the News
Over the past two decades, and especially in recent years, filmmakers have used their medium of choice to produce compelling and exceptionally realistic depictions of the effects of dementia on an individual and their loved ones. From Dame Judi Dench in Iris to Julianne Moore in Still Alice, depictions of the struggle, exhaustion, and emotional toll incurred in the months and years following diagnosis have been lauded, if not for the performances, then for the devastating impact they elicit.
Often, however, these struggles are viewed as a conflict to be managed as part of the broader film, with the focus typically being on the most prominent symptom of dementia, memory loss. The latest entry in the list of films depicting dementia, 2020’s The Father, differs in that it portrays the condition not only in the context of the significant emotional responses that it elicits, inclusive of memory loss, but also as a shared experience across all members of the individual’s inner social circle, including the individual themselves.
A recent op-ed in the Toronto Star by author and gerontologist Dan Levitt posits that the film offers a distinctly more personal narrative, and one that is perhaps uncomfortably relatable to those who have experienced it firsthand. Levitt contends that the film does not shy away from depictions of raw emotion that span the spectrum, from denial to anger, distress to depression.
To those who have experienced that range of emotions firsthand, or have been called on to counsel or advise those who have, those experiences are often held out as the most challenging and difficult experiences to manage. The film confronts these experiences and, as Levitt notes, does so with a view to bringing broader attention and compassion to the shared experiences between patient, loved ones, and caregivers, and to create a more positive public discourse.
Thanks for reading, and congratulations Sir Anthony Hopkins on a well-deserved award.
Like many in the estates world, we have been closely following the evolvement of Bill 245, the Accelerating Access to Justice Act, 2021. Initially introduced in February of 2021, Bill 245 significantly alters Ontario’s estate laws. Bill 245 was proposed by the government in an effort to modernize an outdated system – a proposal that was welcomed by those in the estates community. The Estates Bar welcomes these developments and commends the Attorney General’s office for taking these significant steps in updating our legislation to better reflect the realities of life in the 2020s.
On April 19, 2021, Bill 245 received royal assent. The changes to Ontario’s estate laws are enumerated in Schedule 9 of Bill 245 and include the following:
- The Succession Law Reform Act (the “SLRA”) is amended to provide for the remote witnessing of wills through the means of audio-visual communication technology for wills made on and after April 7, 2020. The execution of a will in counterparts will now be permitted.
- Section 16 of the SLRA, which provides for the revocation of a will upon marriage, except in specific circumstances, is repealed.
- Subsection 17(2) of the SLRA is amended to include separated spouses. As such, any gift bequeathed to a spouse will be revoked upon separation.
- Section 21.1 is added to the SLRA and provides the Superior Court of Justice with the authority to, on application, make an order validating a document or writing that was not properly executed or made under the Act, if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter, or revive a will of the deceased.
- Section 43.1 is added to the SLRA to exclude separated spouses from inheriting on an intestacy.
Bill 245 does not, however, affect the rights of common-law spouses.
The repeal of the provision under the SLRA with respect to the automatic revocation of any pre-existing wills by marriage is an important first step in protecting vulnerable older Ontarians from predatory marriage scenarios. Similarly, the updated rights of separated spouses will, in most cases, result in a more appropriate treatment of separated spouses who do not take the step of obtaining a formal divorce.
The new will validation provision to be added to the SLRA will provide the courts with a mechanism to allow the intentions of individuals who may not be aware of the formal requirements for a valid will to be honoured. In the past, we have seen technicalities prevent what was clearly intended to be a will from functioning as one from a legal perspective.
These changes also have the potential to improve access to justice. In particular, the permanence of virtual witnessing provisions for both wills and powers of attorney has the potential to increase access to justice while preserving necessary safeguards in the will execution process. The emergency measures introduced during the pandemic will allow Ontarians improved access to legal assistance in their estate planning, regardless of where in the province they may be located.
The amendments relating to the remote witnessing of wills and counterpart execution are currently in effect. The remaining legislative amendments will not come into force until a day proclaimed by the Lieutenant Governor, which will not be earlier than January 1, 2022.
Thanks for reading and have a wonderful day,
Suzana Popovic-Montag & Tori Joseph
In a Notice to the Profession and the Public updated April 20, 2021, Chief Justice Morawetz of the Ontario Superior Court gave notice that until May 7, 2021, the Court will be deferring as many matters as possible. This restriction is in light of the recent critical situation as a result of the COVID-19 pandemic, and in light of the recent heightened province-wide Stay-at Home order effective April 17, 2021.
The Notice reads as follows:
In view of the strengthened stay-at-home order and the critical situation with the pandemic, over the next several weeks until May 7, to reduce the number of court staff, counsel or parties required to leave their homes to participate in court proceedings, the Court will defer as many matters as possible. This includes virtual hearings.
The Court will focus on hearing
- the most serious child protection matters
- urgent family matters
- critical criminal matters, and
- urgent commercial or economic matters where there are employment or economic impacts.
Subject to the discretion of the trial judge, matters that are in-progress can continue. The positions of the parties and staff should be strongly considered and alternate arrangements should be made for those who do not wish to attend in-person.
The Court is seeking the cooperation of counsel to defer as much as possible.
However, matters WILL be proceeding as scheduled on the Toronto Estates List. In a message sent out by Justice McEwen, he stated that unless you are advised to the contrary, you should assume that any matters currently scheduled on the Commercial List or Estates List are proceeding as scheduled. This is because all matters on the Lists are proceeding virtually, and most are proceeding without the need for court staff to be physically present in the Court. The message was distributed to members of the Estates List Users Committee for dissemination. If you would like to receive a copy, please contact me at firstname.lastname@example.org.
Have a great weekend.
On November 18, 2020, we blogged about medical assistance in dying (“MAID”) accessibility. We discussed Bill C-7 and the government’s proposal to expand eligibility for assisted death. The government’s proposal was accepted by the Senate on March 17, 2021 and, as such, Bill C-7 is now in effect.
Our previous blog post largely centered on arguments in support of increasing MAID accessibility. What it did not consider was the controversy sparked by Bill C-7, especially in marginalized communities such as the disabled community.
Bill C-7 was initially proposed after a 2019 Superior Court of Quebec decision held that it was unconstitutional to limit MAID to those at the end of their lives. Accessibility to MAID has now been expanded as some of the more onerous conditions have been alleviated. Those eligible to receive MAID now include individuals suffering intolerably from severe illnesses and disabilities with no cure.
Those with disabilities and advocates of this community are concerned that MAID will disproportionately be accessed by individuals with disabilities who do not otherwise have access to adequate social supports. Proponents of the amendments to the legislation argue that there are safeguards in place to protect the floodgates from opening and to protect against legislative abuse. For example, patients who request MAID but are not nearing the end of their life will be informed of various social and communal supports which can assist in alleviating their suffering. However, there is no requirement necessitating those considering MAID to actually access these supports. Further, Bill C-7 requires medical professionals to conclude that the person applying for MAID has given “serious consideration” to their decision. Opponents of the Bill question the subjectivity and ambiguity of this loose requirement … what would actually amount to “serious consideration”?
Are there enough protective measures in place? Are these proposals encouraging ableism and fueling already pervasive stereotypes in our society?
Disability-rights organizations would answer the former in the negative and the latter in the affirmative. On February 24, 2021, over 125 Canadian organizations signed an open letter urging the government to reconsider the amendments proposed in Bill C-7. The letter states that “Bill C-7 sets apart people with disabilities and disabling conditions as the only Canadians to be offered assistance in dying when they are not actually dying.” Studies have shown that individuals with disabilities have higher rates of depression and more frequent occurrences of suicidal thoughts in comparison to the general public. Those who oppose Bill C-7 argue that the underlying causes of suffering must be addressed, such as the institutional and social problems causing suffering. They argue that these problems often outweigh any physical suffering.
Of course, not all individuals with disabilities find Bill C-7 to be offensive. For some, the expansion of MAID represents hope and the prevention of intolerable suffering. Suffering is subjective and individuals will now be able to decide when/if their suffering becomes too intolerable. For these people, MAID is a humane exit from a life that is too unbearable to be endured.
Thank you for reading, and enjoy the rest of your day,
Suzana Popovic-Montag and Tori Joseph
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.
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.
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:
- A demonstration of CaseLines;
- An 18 Minute Tutorial on how to access, update, invite people and review evidence for cases;
- Frequently Asked Questions About Thomson Reuters CaseLines;
- CaseLine Hearings – Tips for Counsel and Self-Represented Parties; and
- Sydney Osmar’s article on MAG’s Pilot Project with CaseLines.
Thank you for reading!
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.
Some Solace for Surviving Married Spouses: Ontario Increases “Preferential Share” to Spouse on Intestacy
Ontario has increased the preferential share payable to a spouse on intestacy from $200,000 to $350,000.
A recent amendment to the regulations under the Succession Law Reform Act prescribes the preferential share as being $350,000 for the estate of a person who died on or after March 1, 2021. The preferential share remains at $200,000 for estates of a person who died before March 1, 2021.
The last change to the value of the preferential share was in 1995, when it was increased from $75,000 to $200,000.
Under the Succession Law Reform Act, where a person dies without a will, but with a “spouse” and children, the spouse is entitled to the “preferential share”, and ½ of the balance of the estate if there is one child, or 1/3 of the balance if there is more than one child.
The provision applies to married spouses only, including married but separated spouses. However, other recent proposed amendments to the Succession Law Reform Act may change this. The proposed legislation provides that the intestacy rules that provide for a spouse do NOT apply if “the spouses are separated at the time of the person’s death”. “Separated” is defined as meaning either (i) they lived separate and apart for three years as a result of the breakdown of their marriage; (ii) they entered into an agreement that is a valid separation agreement; (iii) a court made an order settling their affairs arising from the breakdown of the marriage or (iv) a family arbitration award was made settling their affairs. Further, there must have been no reconciliation: they must have been living separate and apart as a result of the breakdown at the time of death.
Cue the litigation.
On October 30, 2020, I blogged on the preferential share. In that blog, I asked whether it was time to reconsider the value of the preferential share. It looks like the time has come.
Have a great weekend.
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.
Thanks for reading,
Ian Hull and Daniel Enright
The Accelerating Access to Justice Act, 2021 (“the Act”) or Bill 245, intends to usher forward significant, and welcome, changes to the Succession Law Reform Act (“SLRA”), if passed.
This blog is not intended to be a comprehensive review of the proposed changes, and only seeks to provide an overview of some of the most significant changes.
Making Virtual Witnessing, Execution and Counterpart Execution Permanent
The Act repeats the content of the emergency orders passed by the Ontario government, initially intended to provide for a temporary solution to the difficulties posed by social distancing. In doing so, the new section 4 of the SLRA will provide for the permanent option to have Wills witnessed and executed through the use of audio-visual technology, and, for the execution of Wills in counter-part.
Eliminating Revocation by Marriage
The Act proposes to revoke section 15(a) and section 16, thereby eliminating the automatic revocation of Wills as a consequence of marriage. This particular amendment comes as a result of calls to provide greater protection against predatory marriages.
Treating Separated Spouses more similar to Divorced Spouses
Section 17(2) of the SLRA sets out that, unless a contrary intention appears in the Will, where a marriage is terminated by divorce or declared a nullity, a devise or bequest to a former spouse, an appointment of a former spouse as estate trustee, and the conferring of a general or special power on a former spouse, are revoked, and the Will is construed as if the former spouse had predeceased the testator. This particular provision does not include reference to separated spouses, and the proposed amendments intend to address this gap.
New subsection 17(3) will make it such that section 17(2) will apply to spouses separated at the time of the testator’s death, with necessary modification. The new section 17(4) defines when a spouse is considered to be separated, including that if, before the testator’s death:
- they lived separate and apart for three years as a result of a breakdown in marriage;
- they entered into a valid separation agreement under Part IV of the Family Law Act,
- a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
- a family arbitration award was made with respect to their rights and obligations as a result of their marriage breakdown, and
- at the time of the testator’s death, they were living separate and apart as a result of marriage breakdown.
The Act also proposes new section 43.1 which will eliminate a separated spouse’s entitlements on intestacy. The section relies on the same definition as set out above, to define “separated spouses.”
Moving from Strict Compliance to Substantial Compliance
The Act proposes new subsection 21.1 which provides for the court-ordered validity of a testamentary document. The proposed section sets out that if the Superior Court of Justice is satisfied that a document that was not properly executed or made under the SLRA sets out the testamentary intentions of a deceased, or an intention to revoke, alter or revive a Will of the deceased, the court may, on application, order that the document is a valid and fully effective Will.
The proposed provision does not expand to electronic Wills, which will continue to be considered invalid testamentary instruments.
The Act provides that substantial compliance, as set out in section 21.1 will only apply if the deceased died on or after the date in which the proposed amendments come into force.
To learn more about the Act, and its proposed amendments, please see the below:
Thanks for reading!
Handwritten Wills/Codicils are certainly quite rare, particularly for people with means. In certain circumstances, and particularly where the testator had made a pre-existing Will, the presence of a subsequent handwritten Will or Codicil can suggest the presence of suspicious circumstances.
As Paul Trudelle blogged last week, Larry King apparently executed a secret handwritten codicil in 2019 that divided his roughly $2 million estate amongst his five children, to the exclusion of his wife, Shawn King. Mrs. King apparently intends to challenge the validity of the 2019 codicil.
In Ontario, an amendment to a Will is referred to as a “codicil” and it is considered to be a Will, for the purposes of the Succession Law Reform Act. A handwritten Will, in Ontario, is referred to as a “Holograph Will” and the only requirement is that it be made wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. The fact that a Holograph Will is usually made without witnesses will often cause litigation, particularly if there are suspicious circumstances surrounding its execution and/or discord in the family of the deceased.
If Mr. and Mrs. King resided in Ontario, Mrs. King could pursue various claims in challenging the validity of the 2019 codicil (subject to the available evidence), including:
- Lack of requisite testamentary capacity on Mr. King’s part;
- Mr. King being subject to undue influence from any or all of his children (or other third parties);
- Presence of suspicious circumstances in the execution of the codicil; and
- Presence of fraud in the execution of the document (which is pleaded quite rarely, as there are serious costs consequences for those that make such an allegation but are unable to prove it).
It will certainly be interesting to see how this matter unfolds, particularly taking into account that $2 million is not a significant amount when the costs of litigation are taken into account.
Interestingly, some sources suggest that his Estate is actually worth $50 million, which sounds a lot more accurate!
Thanks for reading!
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