In January 2021, a decision was made by the Ontario Superior Court regarding a motion in the ongoing Cohen v. Cohen Estate matter. This case involves a widow making a claim against the estate of her late husband on several grounds, including a decades-old marriage contract, an application for equalization of net family property, and a claim for dependent support.
As this matter demonstrates, a surviving spouse who believes themselves to have been unfairly left out of the will of their late spouse has several options in terms of litigation against the deceased’s estate. If a marriage contract existed between the spouses previously, providing for one spouse in the event of the death of the other, then the surviving spouse could move to enforce the marriage contract and make an appropriate claim upon the estate.
In the alternative, the surviving spouse can bring an application under the Family Law Act (“FLA”) to effect an equalization of net family property. This would be functionally similar to the process of asset equalization after a divorce or separation, only that the claim would be against the estate of the deceased spouse, rather than against their living person.
Also in the alternative, the surviving spouse can also bring an application under the Succession Law Reform Act (“SLRA”) for dependent support. Essentially, if the surviving spouse were to sufficiently prove to the Court that he or she was financially dependent upon the deceased while they were still living, then the surviving spouse could be entitled to an appropriate amount of cash to support their former lifestyle with their late spouse.
Finally, a surviving spouse can also make equitable claims of unjust enrichment, promissory estoppel, or proprietary estoppel. The essence of all three of these claims is that the deceased benefitted disproportionately from work that their spouse contributed to their relationship, and that the surviving spouse is therefore entitled to financial compensation, as a result.
Thank you for reading!
One pertinent issue briefly discussed in the recent webinar I attended was that of the effect of the March 2020 Calmusky decision upon estate planning.
In Calmusky v. Calmusky, the Court decided that assets held in a Registered Income Fund (RIF) were presumed to constitute a resulting trust, instead of a direct transfer to the named beneficiary of the RIF. The anticipated impact of this decision on estate planning and administration – and, by proxy, litigation – has caused quite a stir in the legal community.
In the “Wills and Estates Refresher” webinar, the presenters expressed frustration with Calmusky and the complications of its application to their own estate planning practices. After all, designating a beneficiary of a RIF or similar investment account is an excellent tool an estate planner can use to transfer assets outside of a testator’s estate, thus reducing estate administration tax for a given estate. Imposing a resulting trust upon the assets in these accounts to the benefit of the estate quite explicitly defeats the purpose of using such an estate planning mechanism.
The presenters suggested that the estate planning bar was not overly enthusiastic about following Calmusky, for the reasons stated above. In the very recent 2021 decisions of Munro v. Thomas (May) and Mak (Estate) v. Mak (June), the Court was confronted with beneficiary designation fact scenarios quite similar to Calmusky, and decided quite differently. Mak Estate, in particular, directly addressed the legal reasoning in Calmusky and came to the opposite conclusion regarding the question of whether the assets ostensibly transferred to a designated beneficiary ought to be presumed to be held in resulting trust for the benefit of a deceased’s estate. This should be promising to estate planners nervous about the implications of Calmusky over the past year.
However, as Calmusky, Munro, and Mak Estate were all determined at the level of the Ontario Superior Court, until we hear otherwise from the Court of Appeal or Ontario Legislature, the practical impact of Calmusky is in a state of legal limbo.
Thank you for reading!
I recently had the pleasure of attending a Continuing Professional Development webinar offered by the Law Society of Ontario, namely the July 14, 2021 Wills and Estates Refresher.
The main topics discussed in this webinar related to both general issues in the process of estate planning, and particular issues related to the rise of virtual legal practice during the Covid-19 pandemic.
For example, the speakers discussed how many potential clients would approach an estate planning lawyer under the assumption that drafting their will and other testamentary documents would be a simple, uncomplicated process, until their lawyer soon discovered several issues with their assets and life situation that would actually significantly complicate their estate planning.
Six such factors outlined by the speakers were: 1) bequeathing a family cottage, 2) bequeathing a family business, 3) bequeathing to family members living in the United States or another foreign jurisdiction, 4) bequeathing real estate located in the US or another foreign jurisdiction, 5) bequeathing complex financial assets, and 6) bequeathing to children or spouses from a former marriage.
Imagine a situation in which a husband and wife are both married to each other for the second time, both have children from their previous marriages, with a daughter living in England, and a son living in Ireland, while owning a vacation property in Florida. One could understand why, in such a circumstance, drafting a will for the husband or wife would not be so “simple.”
Another cogent issue discussed was the rise of virtual client meetings and execution of wills over the course of the pandemic. Although this was a necessity during Covid, many virtual legal practices will likely continue into the future, as a convenience and cost-saving measure for both lawyers and clients. However, the speakers did note that a lawyer meeting virtually with a client should always be cautious, making sure that there are not other parties in the room with the client potentially unduly influencing their estate planning intentions. One speaker suggested that in the future, she would perform initial client meetings virtually, but would only commission the execution of wills in person. This seems like a reasonable compromise.
It remains to be seen how the profession will move forward in this regard, as many personal and professional restrictions related to the pandemic are gradually lifted.
Thanks for reading!
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.”
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!
Earlier this week I was so pleased to participate in the kick-off of the first OBA Elder Law Day Conference. We had a full day of venerated experts addressing a wide array of issues impacting older Ontarians (our fastest growing demographic). With more than a dozen speakers, including a key-note presentation by Jane Meadus of the Advocacy Centre for the Elderly (ACE), the materials for the program are a must read.
Much was learned, including about our long-term care (LTC) system, which the health crisis has brought into greater focus. Audrey Miller, our final presenter for the day, looked at LTC challenges exacerbated by our aging population outpacing the accommodations available, and cited some staggering statistics in that regard. She also educated us on the LTC application process, which includes:
- An application is made through the Home and Community Care Support Services (HCCSS) (formerly the LHIN, and, before that, CCAC) for a private room, semi-private, or basic/ward bed (up to 4 beds in a room);
- The applicant can apply to up to 5 different facilities;
- The wait time can range from a few months to a few years, with priority being determined by a number of different factors;
- Once a bed is offered, an applicant has 24-hours to accept it. If refused, barring a significant change in circumstance the person’s name is removed from the lists. Three months must pass before a new application can proceed (though the 3-month penalty has been waived as a result of the pandemic); and
- Each resident has to pay a monthly co-payment, with the rate varying according to home’s structural class and move-in date.
With increasing demand for LTC facilities, there are many applicants on waitlists. Though most prefer to live at home, they cannot afford to do so given their increasing care needs, the high associated costs and the lack of sufficient publicly funded home care services. It thus comes as no surprise that by the time residents are admitted into LTC, the statistics cited by Ms. Miller indicate that 9/10 of the residents have mental impairment, over 40% exhibit aggressive behaviours due to their cognitive condition, and 1 in 3 is completely dependent on staff. These figures highlight the critical need and importance of increasing the daily direct care being provided to residents. As noted in my earlier blog, within the next four years the Ontario budget aims to increase direct care to 4 hours per day.
Looking ahead, $3 billion in spending is pledged in the federal budget over five years to strengthen Canada’s LTC systems, a task force is being put into place to develop a new National LTC Services standard, and Ontario’s Long-Term Care COVID-19 Commission’s Final Report made numerous recommendations for change. We will be following the progress.
Thanks for reading and have a great day,
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,
The Supreme Court of Canada recently delivered its judgment in Sherman Estate v. Donovan. In this case, a prominent couple was found dead in their home in 2017, and intense press scrutiny followed. The deaths remain unsolved and are being investigated as homicides. In these circumstances, it comes as no surprise that the estate trustees sought sealing orders in respect of the applications for probate. The relief was granted in the first instance, but on appeal by the Toronto Star, the sealing orders were lifted. The executors then unsuccessfully appealed to the Supreme Court of Canada.
The judgment of the Court was delivered by Kasirer J., who clarified the test for discretionary limits on court openness established in Sierra Club as requiring an applicant to establish that (1) court openness poses a serious risk to an important public interest, (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent the risk, and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
The Court disagreed with the estate trustees’ argument that an unbounded interest in privacy qualifies as an important public interest. Citing the principle of openness as the rule and covertness as the exception, the Court narrowed the dimension of privacy to the protection of dignity. Therefore, the information revealed by court openness must consist of intimate or personal details, which the Court describes as the “biographical core”, in order to qualify as a serious risk to an important public interest. Additionally, the Court readily recognized that a risk to physical safety is an important public interest.
Given that in the Sherman case the information sought to be protected was not highly sensitive, it was found that the risk to privacy was not serious. Though the Court appreciated that the disclosure of the probate application may be the source of discomfort, it concluded that it did not constitute an affront to dignity, and the fact that some of the beneficiaries of the estates may be minors was not sufficient to meet the seriousness threshold. Additionally, though the feared physical harm was grave, the Court agreed with the Toronto Star that the probability of harm was speculative.
Despite the Court’s pronouncement that dignity is in need of protection, as it is a fairly narrow aspect of privacy, it seems to me that the resolute observance of the open court principle came out as the clear winner in this case.
Thanks for reading and have a great day,
Natalia R. Angelini
This week on Hull on Estates Paul Trudelle and Sydney Osmar discuss moral claims for relief under BC’s Wills, Estates and Succession Act.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
In July 2020, the provincial government announced a Commission into COVID-19 and long-term care. The Commission was mandated to investigate how the pandemic spread within the homes, how residents, staff and families were impacted, and the adequacy of measures taken by the province and other parties. With the expected release of the Commission’s final report on April 30, 2021, the province will now review the report and begin to consider changes.
Come join Hull & Hull LLP’s Natalia Angelini and Wahl Elder Law’s Judith Wahl as they co-chair the upcoming OBA program: Long-Term Care COVID-19 Commission Report, on Tuesday, May 11th from 12:00 pm to 1:30 pm.
The Chair of the Long-Term Care COVID-19 Commission, The Hon. Associate Chief Justice Frank N. Marrocco, will be sharing his insights. This will be followed by a panel discussion on the key legal issues that arose and are continuing to arise in Long-Term Care settings across the province.
This program is eligible for up to 1 hour and 30 minutes of substantive CPD hours.
Registration via the Ontario Bar Association can be found here.
The basic limitation period under section 4 of the Limitations Act, 2002 provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. However, pursuant to section 7(1) of the Act, the “clock” does not run when the person with the claim,
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim.
A person is also presumed to be capable of commencing a proceeding in respect of a claim at all time unless the contrary is proved (section 7(2)), although minors are dealt with separately under section 6 of the Act.
The issue of the plaintiff’s capacity to commence a proceeding in respect of his claim was considered at length by the Court of Appeal in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447. Carmichael is a tragic case involving the murder of the plaintiff’s 11 year old son. The plaintiff strangled his son to death in 2004 when he was suffering from mental illness and psychotic delusions. During this time, the plaintiff was also taking an anti-depressant that was manufactured by the defendant drug company. The plaintiff was charged with murder and he was found to be not criminally responsible as a result of his mental disorder. He later received an absolute discharge from the Ontario Review Board on December 2, 2009. Nearly two years after that, the plaintiff commenced his claims against the drug company on October 5, 2011.
The defendant drug company brought a motion for summary judgment to dismiss the plaintiff’s claim as statute barred. The motions judge dismissed the motion because he found that the plaintiff was incapable of commencing a proceeding because of his psychological condition until the day of his absolute discharge from the Ontario Review Board. The Court of Appeal disagreed.
The Court of Appeal affirmed the use of the Huang/Hengeveld indicators as a list of non-exhaustive, objectively verifiable indicators of incapacity under section 7(1)(a) of the Act (see paras. 94-96):
- a person’s ability to know or understand the minimum choices or decisions required to make them;
- an appreciation of the consequences and effects of his or her choices or decisions;
- an appreciation of the nature of the proceedings;
- a person’s ability to choose and keep counsel;
- a person’s ability to represent him or herself;
- a person’s ability to distinguish between the relevant and irrelevant issues; and,
- a person’s mistaken beliefs regarding the law or court procedures.
Moreover, the plaintiff’s physical, mental, or psychological condition must be the cause for the incapacity in order to meet section 7(1)(a). The incapacity cannot arise from other sources, such as lack of sophistication, education, or cultural differences (para. 101).
The Court of Appeal ultimately found that the plaintiff had the capacity to sue the defendant drug company prior to his absolute discharge from the Ontario Review Board. The Court disagreed with the motions judge’s view of the plaintiff’s expert evidence. The plaintiff’s expert witness was criticized for never having prepared a capacity assessment before and for making conclusions that were unsupported by the evidence. Rather,
“The evidence shows that Mr. Carmichael had several reasons for not suing GSK before December 2, 2009: he did not believe he had the necessary expert evidence until he received the genetic test from Dr. Lucire in October 2009; he was worried about repercussions if the Hospital decided that he was not taking responsibility for his actions; and he was concerned for his own and his family’s well-being. These are understandable reasons for not commencing a lawsuit. But in my view, none of these reasons, alone or together, prove that Mr. Carmichael was incapable of suing GSK until December 2, 2009 because of his psychological condition.” (para. 163)
Leave to appeal to the Supreme Court of Canada was denied last week.
Thanks for reading!