Category: In the News
#TogetherWeAreStronger: The Merger of the Canadian Cancer Society and the Canadian Breast Cancer Society
According to The Globe and Mail, two of Canada’s largest cancer charities officially merged on February 1, 2017, being the Canadian Cancer Society and the Canadian Breast Cancer Foundation. This merger was reported to be a result of decreasing donations which threatened the continuation of decades-long research funding to hospitals and universities. The merger is designed to cut costs by eliminating overlapping operations between the two charities.
Since the merger, the new charity will operate under the name of the Canadian Cancer Society, and subsequent mergers with additional charities of similar purpose are already on the horizon. To paraphrase the Chairman of the Canadian Cancer Society, Robert Lawrie, a Toronto-based mergers and acquisitions specialist, informed The Globe and Mail that there are about 300 cancer charities in Canada with the similar cost and revenue challenges.
It turns out that more than 10% of the total annual funding for all cancer research in Canada comes from the Canadian Cancer Society and the Canadian
Breast Cancer Foundation. Decreasing donations to the Canadian Cancer Society have led the charity to dip into its reserve funds in order to cover program spending and operating expenses. Accordingly, it’s reserve fell from $151 million to $76.1 million between 2012 and 2016. Similarly, the reserve of the Canadian Breast Cancer Foundation fell from $36.1 million to $22.3 million between 2012 and 2016.
Donor fatigue and other competing causes (such as the Fort McMurray fire) were cited as possible reasons for the decrease in donations.
As an estate planning tip, it is always prudent to review Wills that were drawn up in the past to ensure that gifts to a charitable organization are properly named and that the intention of the testator remains the same notwithstanding the possibility that the operations of the named charity may have change over time. Otherwise, consideration should be given to whether the Will should be changed.
To donate to the new Canadian Cancer Society click here.
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I recently watched the documentary Finding Vivian Maier (which was originally released in 2013) and I was struck by John Maloof’s search for anyone who could tell him about who Vivian Maier truly was after her death. After her death, Vivian Maier (February 1, 1926 – April 21, 2009) gained fame as an American, Chicago-based, street photographer. During Vivian Maier’s lifetime, she was simply known to those around her as a nanny, and perhaps an eccentric with a camera around her neck.
Vivian Maier’s art was entirely discovered posthumously and it all began when John Maloof attended a local auction house in Chicago and bought 30,000 negatives for another project. In the course of considering whether the negatives were suitable for Maloof’s book on the history of the Northwest Side neighbour of Chicago, Maloof later became “obsessed with Vivian’s work, and made it his mission to reconstruct her archive”.
The documentary is a chronicle of Maloof’s mission to reconstruct her archive (and of Vivian Maier, herself), including how he found records of her birth from a New York City archive and how Maloof ended up in an remote village in France where her mother’s family lived.
Vivian Maier died unmarried and childless and, as it turns out, intestate.
According to the Chicago Tribune, a Virginia copyright lawyer and former professional photographer named David Deal became concerned that people were selling Vivian Maier’s photographs in manner that infringed copyright law. David Deal used the information that he learned from Maloof’s chronicles to locate one of Vivian Maier’s first cousins once removed. In 2014, David Deal became counsel to Francis Baille in a court case where Mr. Baille asked the probate court to name him as an heir to the Estate of Vivian Maier. Apparently, the information that David Deal used was the story of how Maloof had located another first cousin named Sylvian Jaussaud by hiring genealogists. As Maloof’s story goes, he bought Sylvian Jaussaud’s rights to Vivian Maier’s work for $5,000.00. Ultimately, Mr. Baille’s court case, which involved John Maloof and the Cook County public administrator’s office (the county where Vivian Maier died), settled under private terms that are sealed from the public.
In Ontario, where a person dies without a will, and there is no surviving spouse, children, parent, brother or sister, the property shall be distributed among the nephews and nieces. If there are no surviving nephews and nieces either, “the property shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation”. If there are no next of kin either, the property becomes the property of the Crown, and the Escheats Act, 2015 applies”.
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Mary Kills People is a brand new Canadian television show starring Caroline Dhavernas. Mary Kills People is a fictional show which centers around Dr. Mary Harris, an ER doctor who engages in assisted suicide. The series premier took place on January 25, 2017. According to this Toronto Star interview with the show’s writer, Tara Armstrong, Tara came up with the idea for the show while she was at the University of British Columbia.
As you may be aware from our blog, by reasons dated February 6, 2015, the Supreme Court of Canada found the criminal code prohibitions against physician assisted suicide to be unconstitutional. This landmark decision originated in proceedings before the British Columbia Supreme Court. In 2011, the Plaintiffs in Carter v. Canada (Attorney General), amongst other evidence, put forth 13 affidavits from individuals who wished to have the option of assisted suicide. The Plaintiffs also sought to admit additional witness evidence, on an anonymous basis, from a person called “L.M.” who swore an affidavit which set out the circumstances in which his terminally ill father had ended his own life with the help of his physician and how L.M., his sister, and his sister’s physician assisted L.M.’s terminally ill mother in ending her life. In an order to protect L.M.’s identity the Plaintiffs’ also sought procedural relief which would allow L.M. to be cross-examined and/or testify behind a screen. However, this relief was rejected by the Hon. Madam Justice Smith at first instance and L.M.’s evidence was not a part of the trial record. See Carter v. Canada (Attorney General),  B.C.J. No. 1897, for this particular evidentiary ruling.
While I have not seen the show (yet), and I am not aware of the inspiration or research behind the show, it will be fascinating to see if and how the role of the Courts and judicial reform will be featured on Mary Kills People.
Click here for the Season 1 teaser of Mary Kills People.
Happy reading (and watching)!
As societal norms are continuously changing and evolving, there has been a change in attitudes toward the relationship between adopted children and their biological parents. Today, society encourages adopted children and their birth parents to re-establish a relationship. For example, we have previously blogged on a change of the law in Saskatchewan, which provides for an adult adopted child to reconnect with their birth parents.
In Ontario, the legal status of adopted children is governed by the Child and Family Services Act (the “CFSA”). Section 158(2) of the CFSA provides that, upon an adoption order being granted, the adopted child becomes the (legal) child of the adoptive parent and ceases to be the child of the person who was his or her parent before the adoption order was granted. Pursuant to this statute, once a child is adopted, they are not entitled to their birth parent’s estate unless specifically provided for in the birth parent’s will.
Furthermore, in Ontario, there are no direct provisions governing a testator’s wishes in distributing their property. There is no requirement that all children must be treated equally, or that an individual must leave a part of their estate to their children through a testamentary document. Statutory protection does exist, for dependants, however, under Part V of the Succession Law Reform Act.
In contrast, the law in British Columbia provides that the Court has discretion to vary a will to remedy disinheritance of a child. Pursuant to s. 60 of the Wills, Estates and Succession Act (“WESA”), a parent must make adequate provision for their children, and if the court does not find a testamentary division among the children to be equitable, the court can intervene.
A recent case out of British Columbia considered a novel argument: does the receipt of a benefit under a birth parent’s will entitle an adopted child to argue for a greater share of the estate under section 60 of the WESA?
In the Boer v Mikaloff, 2017 BCSC 21, Mr. Boer was legally adopted as a baby to an adoptive family. He became reunited with his birth mother around the age of thirty, and in his birth mother’s last will and testament, he received a portion of her estate. Mr. Boer challenged his birth mother’s last will and testament in court, arguing that pursuant to s. 60 of the WESA, he was not given an equitable share of his mother’s estate compared to his mother’s other children.
The court held that Mr. Boer was not entitled to an equitable share, as he was not legally considered to be his birth mother’s child. The court held that section 3(2)(a) of the WESA does not allow an adopted child to manipulate a bequest by the child’s pre-adopted parent into a s. 60 claim and applied the case of Canada Trustco Mortgage Co. v Canada, 2005 SCC 54, to uphold that the text, context and purpose of the statute in this regard was clear.
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Life insurance is a common estate planning tool, whether it may be engaged to increase the assets available to beneficiaries, to assist in equalizing inheritances received by multiple beneficiaries (for instance, when one child will receive an interest in a family business and other assets are not available to leave an equal benefit for other children), or to fund specific types of expenses that will become payable upon death. While the owner of a life insurance policy is more often than not the person whose life is insured, this is not always the case. In Canada, in order to purchase a life insurance policy on another person’s life, the policy owner must have an “insurable interest” in the policy subject’s life. Canada’s Insurance Act defines an insurable interest as follows:
Without restricting the meaning of “insurable interest”, a person, in this section called the “primary person”, has an insurable interest,
(a) in the case of a primary person who is a natural person, in his or her own life and in the lives of,
(i) the primary person’s child or grandchild,
(ii) the primary person’s spouse,
(iii) a person on whom the primary person is wholly or partly
dependent for, or from whom the primary person is receiving, support or education,
(iv) the primary person’s employee, and
(v) a person in the duration of whose life the primary person has a pecuniary interest; and
(b) in the case of a primary person that is not a natural person, in the lives of,
(i) a director, officer or employee of the primary person, and
(ii) a person in the duration of whose life the primary person has a pecuniary interest.
Other jurisdictions similarly allow individuals or companies to take out life insurance policies on the life of another on the basis of an insurable interest in certain circumstances. As David Freedman mentioned in his recent blog post, Disney had a life insurance policy worth $50 million in American funds on the life of Carrie Fisher as one of the stars of the Star Wars franchise, which Disney purchased in 2012 for $4 billion. This is reported to be the largest ever payout of a life insurance policy of this kind.
There is much speculation with respect to how Disney will fill the void left by Fisher’s death in the final entry in the current Star Wars trilogy (Fisher had apparently finished filming for Episode VIII prior to her passing). Some suggest that the script for the following installment will be drastically re-written as a result of Fisher’s absence. Others have referred to the posthumous appearance of Peter Cushing in Star Wars: Rogue One (I personally had no idea that it was not the original actor himself until I read Suzana’s blog on the topic) in support of the potential to use CGI technology to allow Princess-turned-General Leia Organa to appear again in Episode IX. As done with Cushing in Rogue One, Disney could, in theory, digitally impose Fisher’s face onto another actor’s body. In any event, the life insurance proceeds payable to Disney will no doubt assist in offsetting any loss that it will suffer as a result of Carrie Fisher’s untimely passing.
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Beginning April 10, 2017, the United States Department of Labour will implement what is being referred to as the “Fiduciary Rule“. The Fiduciary Rule will require American investment advisors to satisfy a higher standard of care when providing investment recommendations, putting clients’ interests above their own and providing complete disclosure with respect to fees and potential conflicts of interest.
The standard of fiduciary, premised on a role of trust and the duty to act in utmost good faith, is applied to guardians of property and the person, attorneys of property and personal care for incapable grantors, estate trustees, and other types of trustees. While commentary regarding the Fiduciary Rule recognizes that investment advisors should be (and often are) already guided by the best interests of investor clients, some who earn commission on the sale of certain products may be in a position of conflict. The Fiduciary Rule will prevent advisors from making certain recommendations if they are not in the client’s best interests. The new standard of care required of American investment advisors may to some extent fall short of that applied in respect of other traditional fiduciaries, and is subject to a number of exceptions.
Absent the implementation of the Fiduciary Rule or equivalent requirements in other jurisdictions, investment advisors are not typically treated as fiduciaries. Contracts may specifically state that advisors are not acting in a fiduciary role and that they do not absorb risk on their clients’ behalf related to investment advice that is followed. Typically, if something goes wrong and an investor wishes to pursue a claim against his or her advisor, the onus is on the investor to prove the fiduciary nature of the relationship. If the investor is able to prove that a fiduciary obligation existed (factors include the length of the relationship, the sophistication of the client, and the demonstrated reliance on the advice of the advisor), the advisor must then show that he or she has discharged the duty in good faith and with full disclosure.
Although the Fiduciary Rule is scheduled to come into effect on April 10 of this year, it is anticipated that the new Trump administration may delay the applicability of the Fiduciary Rule for the time being. Although there have been discussions with respect to raising the standard of care of investment advisors in Canada, where extensive regulations already apply, an equivalent to the U.S. Fiduciary Rule has not yet been introduced.
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The common law slayer rule makes the law in Canada clear that committing murder will prevent a person from inheriting the estate of the victim. For clarity, the accused must be found guilty and exhaust all of their rights to appeal before the courts will void a testamentary gift or beneficiary designation.
In the cases of Helmuth Buxbaum and Peter Demeter, who were found guilty of murdering their wives, the court refused to allow the men to benefit from their crimes by collecting the proceeds of their wives’ insurance policies. Pursuant to the case of Demeter v British Pacific Life Insurance Co.,  OJ No 3363, a criminal conviction will be accepted as proof of criminal activity in civil cases. Therefore, a person who has been convicted of murder cannot argue in civil court proceedings that he or she is innocent and capable of accepting a testamentary gift.
Recently, in Minneapolis, an individual named Michael Gallagher killed his mother, and around a year later, is attempting to obtain her life insurance proceeds. According to an article in the Toronto Star, bedbugs were infesting the apartment of Mr. Gallagher’s mother, and he believed that she would be evicted from her home, and decided to “send her to heaven.” The law in Minnesota is similar to the law in Canada, and their legislation states that an individual who “feloniously and intentionally kills the decedent is not entitled to any benefits under the will.”
This case turns, however, on the fact that Mr. Gallagher was not convicted for murdering his mother. In July, a Judge found that he was not guilty due to reasons of mental illness, stating that he “was unable to understand that his actions were wrong.” This finding allows Mr. Gallagher to potentially have a claim to his mother’s life insurance policy.
In Canada, a similar finding is known as NCRMD (Not Criminally Responsible on Account of Mental Disorder). If this case took place in Canada, it is likely that Mr. Gallagher would have been found NCRMD. This raises the important question of whether an individual, who is not convicted of murder, but has killed somebody, is still able to claim the proceeds as a beneficiary a testator’s estate or life insurance.
In the case of Nordstrom v. Baumann,  SCR 147, Justice Ritchie stated, “The real issue before the trial judge was whether or not … the appellant was insane to such an extent as to relieve her of the taint of criminality which both counsel agreed would otherwise have precluded her from sharing in her husband’s estate under the rule of public policy.“ The court held that the public policy slayer rule does not apply if the individual was found NCRMD at the time of the killing. Furthermore, in the case of Dreger (Re),  O.J. No. 2125 (H.C.J.), the court held that “[the] rule of public policy [that a person found not guilty for murder] cannot receive property under the will…the only exception to this rule is that a person of unsound mind is not so disqualified from receiving a benefit under the will of a person he has killed while in law insane.“ Lastly, the recent case of Dhingra v. Dhingra Estate, 2012 ONCA 261, upheld a similar finding and allowed the NCRMD individual to apply for the deceased`s life insurance policy.
The law in Ontario seems to uphold the principle that a mentally ill individual who was unable to understand the consequences of their actions should not be automatically disentitled to life insurance proceeds.
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With the aging population, there are increasing numbers of individuals who may require a caregiver. And that caregiver is not always privately employed, or a direct family member or a spouse.
Currently, the socio-economic situation of such unpaid caregivers has been documented as “financial hardship” due to the void created upon the terminated relationship A recent article published by Canadian Family Law Quarterly suggests a two-pronged statutory remedy be put in place in order to: (i) provide legal recognition of such relationships, and (ii) compensate sacrifices of the unpaid/altruistic caregiver.
Who Should Compensate Unpaid Caregivers?
An important consideration in the contemplation of providing support to unpaid caregivers is whether the state or the individual accepting care should have the onus of providing financial support. In the case of Egan v Canada,  2 SCR 513, Justice Sopinka ruled in favour of individual responsibility and stated “the government was not required to be proactive in recognizing new social relationships [and that]… it is not realistic for the court to assume that there are unlimited funds to address the needs of it all.”
On the other hand, Nicholas Bala in an article published in the Queens Law Journal states: “an adult who shares a home and provides care for another economically dependent adult should be entitled to the same level of state assistance (or tax relief) [as paid caregivers] whether the dependent is a spouse, parent, sibling, uncle or friend.”
Currently, aside from equitable and statutory remedies (not available to all and not certain), the only private law safeguard put in place to protect unpaid caregivers is through wills and estate planning. To protect an unpaid caregiver through a will or estate plan would require forethought by the recipient of the care. The plan would need to be instituted at a point when the individual had capacity, and was able to properly execute a will or testamentary document.
In the case of unpaid caregiving, the care provider who is a family member may be a beneficiary of an existing estate plan (outside of any caregiving obligations). Entitlement to an enhanced benefit would be a fair way to compensate for unpaid care to the testator.
Another recourse for an unpaid caregiver is to apply for dependant’s relief pursuant to section 58(1) of the Succession Law Reform Act (“SLRA”).
Section 58(1) provides that:
Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them
In the case of Cummings v Cummings, 2004 CanLII 9339 (ON CA), the Court of Appeal acknowledged that “caregiving may give rise to both legal and moral obligations to provide support.” Therefore, if an unpaid caregiver can establish themselves as a dependant of the deceased individual who was receiving their care, it is possible they may get some recourse under the SLRA.
It nonetheless bears repeating that the case for law reform relates to the person who does not meet the definition of dependant: the non-direct family member, non-conjugal caregiver who altruistically provides caregiving at significant personal sacrifice and is not named in the Will on the termination (i.e. death) of the caregiving relationship.
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Contemplating how to better my practice in this New Year, I was drawn to a piece addressing how lawyers need to think differently on the subject. Of the various items addressed, four that the author examines hit home to me:
- Leadership capacity and adaptability – The rate of change and competition in our industry is fast, and will probably accelerate. It may be valuable to consider whether your team is sufficiently resilient to bear the pressure of change. Does it have the foresight to more than just manage, and instead lead your firm through its changes to meet client needs?
- Data-driven business development – Examining readership data can aid your firm in identifying connected individuals and pursue them with a specific value proposition. I believe it can also help elevate content by tailoring it to suit the interests of your most highly engaged readers.
- Client intimacy – Satisfaction interviews are helpful in learning how to adjust to achieve a happier client, but they are not extensively used. Think about implementing something of this nature. What your firm can do to keep and grow your most important clients is imperative to have on your radar.
- Sustainability – Law firm leaders are facing management challenges, including managing Millennials and the expectation of the “always on” work culture. The author presses home the importance of creating a sense of purpose and belonging for your team, as well as investing in their members so a sustainable work environment is created.
Click here should you wish to read more on these and additional considerations to keep in mind.
Interestingly, another recent article speaks to new legislation that took effect on January 1, 2017 in France, reportedly implemented in response to the 24/7 work culture. It requires employers of 50 or more staff to negotiate off-hours email practices with their staff. Although no sanctions are specified for non-compliance, I would hope the intention to promote a climate limiting intrusion of the workplace into private life can be realized.
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Disney’s decision to “resurrect” Peter Cushing through CGI to reprise his role from 1977’s Star Wars for the franchise’s most recent film, Rogue One, has attracted a lot of attention. Cushing died over 20 years ago. Cushing portrayed a popular character in the original 1977 movie, to which Rogue One is a direct prequel. Rather than recast the role, Disney used CGI technology to create an entirely new performance with Cushing’s likeness. This decision has raised interesting issues, both ethical and legal.
While not confirmed, it seems likely that Disney asked permission of Cushing’s estate to use his likeness in the film. There were two mentions of Cushing in the film’s credits: “With Special Acknowledgment to Peter Cushing, OBE” and “Special Thanks to The Estate of Peter Cushing, OBE.” The laws about the right to prevent others from using and profiting from an individual’s likeness without his or her consent, variously called publicity rights or personality rights, differ significantly across jurisdictions. In California, there are strong protections that last 70 years after death, whereas in England, where Cushing lived, there are no such rights at all.
In Ontario, there is no statute that protects the use of personality, name, or image of an individual, as there is in British Columbia, Manitoba, and Saskatchewan. There is, however, a common law tort of “appropriation of personality.” In Saskatchewan and British Columbia, the cause of action for appropriation of personality is extinguished on death. The exact scope of the cause of action is unclear in Ontario law. In Gould Estate v Stoddart Publishing Co, the Ontario Court of Justice declared obiter that personality rights or rights of personality are devisable under Ontario law. Therefore, the “asset” of a deceased individual’s personality rights pass to heirs as any other assets, pursuant to the Succession Law Reform Act. The decision was affirmed on appeal. The estate of a deceased celebrity in Ontario would therefore be entitled to authorise or restrict use of the likeness of the deceased. The court declined to address how long these rights endure.
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