Written reasons from a mid-trial motion was recently released in Barker v. Barker, 2019 ONSC 2906. The only issue in this motion was whether a particular video of a deceased plaintiff was admissible at trial. The larger claim at issue surrounds the Oak Ridge division of the Penetanguishene mental health centre and its treatment of maximum security mental health patients between the 60’s and the 80’s. One of the plaintiffs, James Motherall, died after the action was brought and his claims were continued by the estate trustees of Mr. Motherall’s estate under Rule 9 of the Rules of Civil Procedure.
Prior to Mr. Motherall’s death, Mr. Motherall was examined for discovery in the ordinary course but he was not examined under Rule 36 for the purpose of having his video testimony tendered as evidence at trial. Since a de bene esse examination did not occur, the trial judge was literally unable to assess Mr. Motherall’s credibility with his own eyes. In an effort to address this issue, counsel for the plaintiffs sought to introduce video footage of Mr. Motherall from a CBC documentary that featured Mr. Motherall and his experiences at Oak Ridge. The footage was taken a month before Mr. Motherall’s death and counsel for the Plaintiffs proposed to call the filmmaker as a witness to introduce the unedited footage of the filmmaker’s interview with Mr. Motherall.
Without criticizing the filmmaker’s work, the trial judge found that the video interview was not conducted under reliable circumstances for the purposes of a trial because Mr. Motherall was not sworn, he was not cross-examined, and he was simply asked to tell his story without more. The video was presumptively hearsay and it was up to the plaintiffs to meet, on a balance of probabilities, the criteria of necessity and reliability under the principled approach for the admissibility of hearsay evidence (R v. Khelawon, 2006 SCC 57, R. v. Chretien, 2014 ONCA 403).
In addition to the issues of reliability, the trial judge also found that the video was not necessary since there was a transcript of evidence from Mr. Motherall’s examination for discovery and an affidavit from Mr. Motherall in the course of a prior summary judgment motion.
Both the filmmaker’s proposed testimony and the video footage of Mr. Motherall was found to be inadmissible.
Even though Barker v. Barker is at its core a civil matter, the reasoning from this motion is instructive for estate litigators who are also bound by the additional hurdle for material corroboration pursuant to section 13 of the Evidence Act.
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I was fortunate to have the opportunity to participate in a panel discussion on CBC’s show “On the Money” last night. The panel discussion was prompted by an article posted by CBC news entitled “Care of aging parents costs Canadians an estimated $33B annually.”
The essence of the article was that Canada’s aging population is causing adult children to incur a significant burden, not only in terms of the outlay of money for caregiving costs but, perhaps more significantly, arising from time away from work required to care for their parents.
The Ontario Legislature has recognized the need to address this issue.
Section 49.1(2) of the Employment Standards Act, contains a section on Family Caregiver Leave, which permits employees to take an unpaid leave of absence of up to eight weeks in order to provide care or support to a sick family member.
Pursuant to the statute, an employee would be entitled to an unpaid leave of absence to provide “care or support” to the following family members/individuals who have a “serious medical condition”, including:
- The employee’s spouse.
- A parent, step-parent or foster parent of the employee.
- A child, step-child or foster child of the employee or the employee’s spouse.
- Any individual prescribed as a family member for the purpose of this section.
Although it would appear that there is some relief afforded by the Legislature when an aging parent needs assistance, the fact of the matter is that long-term needs cannot be met except by careful estate planning and consideration of financial resources. It might be worth adding that the family caregiver leave provisions appear to be more directed to short-term illnesses rather than the progressive decline associated with dementia and Alzheimer’s disease.
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Digital assets and passwords for on-line accounts are an important consideration in estate planning. A recent CBC article, found here referencing a situation experienced by a woman named Peggy, highlights the difficulties that may arise in failing to include such assets and information in an estate plan.
Peggy was the sole estate trustee and beneficiary of her husband’s estate. Although Peggy knew her husband’s log-in code to his iPad, she did not know the Apple ID password, which is required to download apps from the App Store. As such, Peggy was unable to re-download her card game app once it stopped working.
Although Peggy could have created a new Apple ID (username and password), it meant that she would have had to re-purchase everything under her husband’s account. As such, to avoid this, Peggy contacted Apple in order to obtain the Apple ID password. Although Apple had initially requested that Peggy provide the Will and death certificate, they later required a Court order before releasing such information.
The good news is that Apple is currently assisting Peggy and is no longer requiring her to obtain a Court order. However, the process has taken many months, and understandably caused Peggy considerable frustration as she considered this to be a simple problem. She just wanted to play her digital card game.
As no such digital asset law exists yet in Ontario, corporations such as Apple, Facebook, and Gmail, are left to their own devices when addressing digital asset ownership and succession.
At this point in time, I have no hesitation in saying that almost all of us have Apple (or Android) products, and rely on Facebook and Gmail accounts. The importance of addressing such assets in an estate plan is therefore clear. Although there are a myriad of products which can assist in managing associated passwords, this is just one step in preparing a thorough estate plan. An experienced lawyer can assist to ensure that all types of digital assets are addressed, that a testator’s instructions are clear and definitive, and proper wording is included in a Will.