Category: In the News
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!
In an effort to modernize the legal system and bring it into the 2020’s, the office of the Attorney General of Ontario introduced Bill 245, also known as the Accelerating Access to Justice Act, 2021, in February 2021. The bill received royal assent on April 19, 2021. Schedule 9 to Bill 245 provides for important changes to the Succession Law Reform Act, RSO 1990, c S. 26 (the “SLRA”). These changes have previously been discussed in Suzana Popovic-Montag’s blog and this podcast by Jonathon Kappy and Rebecca Rauws.
Schedule 9 to Bill 245 provides for six updates to the SLRA. Section 1 of Schedule 9, which makes changes to section 4 of the SLRA, has already come into force and effect. As a consequence of these amendments, the remote execution and witnessing of Wills in counterpart is now permitted on a permanent basis.
The Lieutenant Governor has recently proclaimed that the remaining changes to the SLRA as set out in sections 2 to 6 of Schedule 9 will officially come into effect on January 1, 2022. These changes are briefly summarized as follows:
- Sections 15(a) and 16 of the SLRA are repealed;
- Section 17 is amended to include separate spouses, such that any testamentary gift made to a spouse will be revoked upon separation;
- A new section 21.1 is added to provide for court-ordered validation of a Will that was not properly executed or made under the SLRA; and
- A new section 43.1 is added to provide that the spousal entitlements under the intestacy provisions do not apply if the person and the spouse are separated at the time of the person’s death.
The above-listed amendments are meant to better reflect the modern day experience of individuals and families in Ontario. These changes to the SLRA will certainly be a positive start to the year 2022.
Thanks for reading!
Michael Jackson died on June 25, 2009, at the age of 50. Although almost twelve years have passed since his death, his name remains in the news. The past few weeks and months have been eventful for his estate. Here is my round-up of good news stories (at least from the estate’s point of view):
On May 3, 2021, the US Tax Court determined that the IRS overestimated the value of Michael Jackson’s image and likeness at the date of his death. The IRS valued Jackson’s image and likeness at $161m (all amounts are $US). The estate argued that the singer’s image was worth much less, having a value of only $2,105: an unusually humble, but understandable argument. The judge accepted that the “value” of Jackson’s image was reduced at the time of death due to the singer being past the peak of his popularity, being heavily indebted and having a damaged reputation due to allegations of child molestation. The judge determined that the value of his image at the time of death was $4.15m, resulting in significant tax savings, and the reversal of a $200m penalty.
On April 26, 2021, the LA County Superior Court granted summary judgment in favour of two companies formerly owned by Jackson and now owned by Jackson’s estate, MJJ Productions and MJJ Ventures and dismissed claims made by Wade Robson relating to sexual molestation as against the entities. See Leaving Neverland on HBO. The judge held that the companies had no relationship with Robson that would give rise to a duty of care. The judge held that the entities had no ability to control Jackson, as Jackson had complete and total ownership of the entities. Robson’s lawyer indicated that his client would be appealing the decision.
In December 2020, Michael Jackson’s 2,700-acre Neverland Ranch was finally sold for $22m after being on the market for about 5 years. The property was originally listed for $100m. The property was purchased by Ron Burkle, net worth – $1.5b and owner of many things, including part of the Pittsburgh Penguins.
Details of Jackson’s interest in the property are unclear. It appears that Jackson was having difficulty in keeping up payments on the property, and in 2008, a co-ownership agreement was entered into between Jackson and Colony Capital.
The Michael Jackson website says they are “startin’ somethin’” beginning in December 2021 at the Neil Simon Theatre, New York City. The show is a collaboration between the Estate and Columbia Live Stage. The website describes the show as “the electrifying new Broadway musical that takes audiences inside the creative process of one of the greatest entertainers in history.” It doesn’t mention that his estate valued his image at $2,105 at the time of his death.
Thanks for reading.
“A pandemic is an inopportune time to create a nuanced, well-thought-out and thorough response plan.” – Long-Term Care Covid-19 Commission
On May 19, 2020, in an effort to investigate the deplorable conditions witnessed in many Long-Term Care homes across the province, Ontario launched the Long-Term Care Covid-19 Commission (the “Commission”). On Friday, April 30, 2021, the Commission submitted its final report (the “Report”) to the Minister of Long-Term Care which only confirmed what the province already knew – vulnerable elders were subject to neglect and abuse long before Covid-19 came knocking on Canada’s door. CanAge, a seniors’ advocacy group, described the Commission’s findings as “both a call to action and horror.”
The Report painstakingly depicts a picture of the nightmarish conditions experienced by the residents of certain Long-Term Care Homes in Ontario. The Commission compared the mental health effects suffered by some residents to those faced by prisoners in solitary confinement. This abandonment of one of our most at risk communities is disgraceful.
The Commission pointed to the extreme lack of coordination between government decision-makers as a key finding in its study. Perhaps what was most alarming, was the finding that dozens of residents in homes hit hard by the virus died from dehydration and neglect rather than Covid-19. Though Covid-19 shed light on the inhumane conditions of some homes, this is not a novel problem. The government’s delay in responding to this crisis proved to be deadly in more ways than one.
The Report recommended that the government reconsider the management of Long-Term Care homes with a renewed focus on “quality care.” Of particular note, the Commission cautioned against Long-Term Care homes owned by investors as “care should be the sole focus of the entities responsible [for these homes] …” The Report also criticized the government’s “lack of urgency” to the situation.
If lessons were not learned from this tragedy, then the deaths of so many will have been in vain. Let’s hope the government responds to this Report with immediate action.
Thanks for reading and have a wonderful day!
Ian Hull and Tori Joseph
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.