Tag: Conflict of Laws

17 Jun

We the North: Some Thoughts on Domicile

Charlotte McGee Hull on Estate and Succession Planning, Wills Tags: , , 0 Comments

Die-hard Raptors fans, band-wagon followers, and even sport-neutral citizens alike could not deny the energy in the Toronto air this past Friday, June 14. This day followed the Raptors’ historic four-point defeat of the Golden State Warriors in game six of the 2019 NBA playoffs the night prior, as well as the raucous, joyful celebrations which rang through the city until the early hours of the morning. The Raptor’s win marks the first time in their 24-season history that the Raptors will be graced with the title of NBA Champion.

In my view, one of the most interesting parts of the Raptors’ championship is the sense of community, togetherness and connectedness to Toronto which the team’s journey has inspired. On Friday morning, the CBC broadcasted clips of fans who had tuned in to cheer the Raptors to victory during game six, both in Toronto, across Canada and internationally. While some of the interviewed  members of the Raptors’ diverse group of fans and followers were born in Toronto, many had since moved to reside permanently in other cities in Canada and across the world. Despite this, these fans still felt a strong patriotism to Toronto inspired by the team’s fight to the top. The diversity in the team’s fan network is also reflected in the Raptors’ own varied makeup: the team itself is comprised of players from several different countries, including Canada, the United States, England, Spain and Cameroon.

The diversity both in the team’s fans and in its members brought my mind to the legal concept of domicile.

The diversity both in the team’s fans and in its members brought my mind to the legal concept of domicile. In an Estates context, there are two types of domicile: one’s “domicile of origin” is where they are born, whereas one’s “domicile of choice” connotes a new place where a party takes residence, with the definitive intention of residing there permanently. One may also abandon their domicile of choice. In Canada, domicile is determined on a province-to-province basis.

In an Estates context, there are two types of domicile: one’s “domicile of origin” and one’s “domicile of choice”

One’s domicile will determine which jurisdiction’s laws will be applicable in particular situations, such as in a dependant’s support claim circumstance, or when one seeks a grant of probate to administrate an Estate, for example. As my colleague Stuart Clark wrote about previously, however, two Canadian cases – Tyrell v Tyrell 2017 ONSC 4063 and Re: Foote Estate 2011 ABCA 1 – seem to suggest conflicting rules surrounding how domicile impacts the administration of one’s Estate. While the Alberta Court of Appeal in Re: Foote Estate stated that the domicile of the Deceased “determines the applicable law for estate administration purposes” – suggesting that it is the testator’s domicile that determines which jurisdiction’s laws are to govern the administration of an estate – the  Ontario Court in Tyrell v. Tyrell stated that “for the purpose of administering the Will, the most significant connecting factor is the residence of the estate trustee.” In Tyrell, notwithstanding that the testator died domiciled in a foreign jurisdiction, the laws of Ontario governed the administration of the estate as the Estate Trustee was located in Ontario. Currently, there are no reported cases which cite Tyrell v. Tyrell has been cited to support this rationale. It will be interesting to see how the legal concept of domicile develops in this respect going forward.

In the meantime, we will see how sports, diversity, and the law intersect when the Raptors parade passes by the Hull & Hull offices this Monday.

Thanks for reading!

Charlotte McGee

02 Apr

Alberta or British Columbia? Conflicts of Law Issues in a Guardianship Case

Kira Domratchev Capacity, Guardianship, Litigation Tags: , , , , , , , , , , , , , , , , , , , 0 Comments

The Court of Appeal of British Columbia (the “BCCA”) recently dealt with an appeal from an Order of the British Columbia Supreme Court which declined to exercise jurisdiction by staying a petition for guardianship of an incapable person. This Order also included various terms relating to the person’s care and property.

This appeal dealt with the guardianship of Ms. Dingwall, the mother of both the Appellant and the Respondent.

At all material times, Ms. Dingwall and the Appellant lived in Alberta and the Respondent resided in British Columbia. Between 2010 and 2014, Ms. Dingwall resided for various periods in both Alberta and British Columbia. At the time of this appeal, Ms. Dingwall lived in a care home in British Columbia. She suffered from advanced dementia.

The Alberta Proceedings

On February 5, 2015, the Appellant sought an Order from the Alberta Court of Queen’s Bench appointing him as Ms. Dingwall’s guardian and trustee. The Respondent opposed this Order and in September, 2015 filed an Application to move the proceedings to British Columbia. This Application was never heard and the matter continued to be heard in Alberta.

On July 7, 2016, the Court granted the Order sought by the Appellant which appointed him as Ms. Dingwall’s guardian and provided him with the authority to make decisions with respect to Ms. Dingwall’s health care, the carrying on of any legal proceeding not related primarily to Ms. Dingwall’s financial matters and Ms. Dingwall’s personal and real property in Alberta.

The British Columbia Proceedings

A few weeks prior to the Alberta hearing, the Respondent filed a petition with the Supreme Court of British Columbia seeking a declaration that Ms. Dingwall was incapable of managing herself or her affairs due to mental infirmity and an Order appointing her as committee of Ms. Dingwall’s person and Estate. The Appellant opposed the Respondent’s petition by arguing that the Supreme Court of British Columbia lacked jurisdiction.

The Supreme Court of British Columbia asserted jurisdiction because Ms. Dingwall was at the time of the decision, ordinarily resident in British Columbia and because there was a “real and substantial” connection to British Columbia. The Court found that, in this case, both Alberta and British Columbia had jurisdiction.

Despite British Columbia having jurisdiction in this case, the Court found that the Alberta forum was nonetheless more appropriate and cited the following factors in favour of its decision:

  • The similarity of the proceedings;
  • Alberta having issued a final order; and
  • The Respondent having attorned to Alberta’s jurisdiction by opposing the Appellant’s petition.

As a result, the Court stayed the Respondent’s petition but also made several Orders respecting Ms. Dingwall’s care and property. The parties’ costs on a “solicitor client basis” were to be payable by Ms. Dingwall’s Estate.

The Appellant appealed the following Orders made by the Court, other than the stay of the Respondent’s proceedings:

  • issuing an Order on the matter after declining to exercise jurisdiction respecting it;
  • finding the Court had territorial competence over the matter; and
  • awarding solicitor-client costs payable from Ms. Dingwall’s Estate.

The BCCA Decision

The BCCA allowed the appeal and found that the lower Court erred in making Orders concerning the very matter over which it had declined to exercise jurisdiction. The Court noted that a decision to decline jurisdiction over a particular matter renders a judge incapable of deciding issues or making orders as to the substance of that matter.

As a result, the Court set aside the Orders respecting Ms. Dingwall’s care and property. In light of that finding, the Court of Appeal found it unnecessary to deal with the issue of whether British Columbia had territorial competence over this matter, given that the lower Court declined to exercise jurisdiction, in any event.

The Court of Appeal found that the Appellant was entitled to special costs payable by Ms. Dingwall’s Estate and that the Respondent was not entitled to costs.

The full decision can be found here: Pellerin v. Dingwall, 2018 BCCA 110

Thanks for reading.

Kira Domratchev

11 May

Foreign Powers of Attorney for Care

Suzana Popovic-Montag Power of Attorney Tags: , , , , , , 0 Comments

In 2016, it is no longer out of the ordinary for Canadians to call more than one province home. It has also become more common for Canadians to move among different provinces throughout their lives. Either way, it is important to consider the implications of the validity of a power of attorney for personal care that was granted in one province and whether it will be recognized in another.

For those who have executed a power of attorney for personal care outside of Ontario, the Substitute Decisions Act provides at section 85 (1),

As regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,

(a) the power of attorney was executed;

(b) the grantor was then domiciled; or

(c) the grantor then had his or her habitual residence. 

However, for those who have executed a power of attorney for personal care within Ontario and the attorney is now seeking to use it in another province, the rules as to its validity will vary.

For instance, in Quebec, the1XBAS04FMB Civil Code governs the rules surrounding protection mandates (the equivalent of a power of attorney for personal care). The most significant distinction in this regime is that a mandate given in anticipation of incapacity is conditional upon “the homologation of the mandate” (i.e. the court procedure confirming the validity of the mandate).

A mandatary (attorney) has no authority to act until this step has been completed. Therefore, any acts performed by the mandatary prior to the homologation of the mandate may be annulled. This measure is seen as a protective tool to help circumvent potential power of attorney abuse.

Thank you for reading.

Suzana Popovic-Montag

20 Jan

Cross-Border Successions and Reviewing your Foreign Will

Suzana Popovic-Montag Estate & Trust, Estate Planning, Wills Tags: , , , , , 0 Comments

Statistics show that close to 450,000 cross-border successions take place each and every year in the European Union (“EU”). These successions are estimated to represent a value of more than EUR 120 billion. However, due to complex cross-border succession laws and disputes as to which law is to govern the succession, time and money is often wasted trying to regulate conflict of laws issues.

As a result, on July 4, 2012, European Union Regulation 650/2012, commonly referred to as Brussels IV or the EU Succession Regulation, was passed. Although the regulation was passed in 2012, it only applies to deaths that occurred on or after August 17, 2015. As such, its application is still relatively recent.

The EU Succession Regulation can have a significant impact on Canadians with foreign wills that deal with assets held in an EU member state (except Denmark and with respect to the UK and Ireland, only if they opt in).  Accordingly, it is important to understand the ramifications of this regulation and consider whether a review of your foreign will may be necessary as a result.

The main effect of the EU Succession Regulation is to unify or harmonize the succession laws of the EU member states. The regulation states that the default rule will be that the law of the state in which the deceased was habitually resident is the law that will apply to the devolution of his or her estate. However, in cases where it can be shown that the deceased was “manifestly more closely connected” with another state, the law of this state will apply instead.

Of particular significance is that the rules regarding which law will apply can now be thwarted by an express election made in the will. This election must state that it shall be the law of the deceased’s nationality that will apply instead. In cases where the testator has more than one nationality, he or she may choose which is to be used for the purposes of this provision.

This regulation is intended to provide not only more certainty with respect to the laws which will govern a succession but also to allow for the testator to have more control over the process. It is important to bear in mind that most civil law jurisdictions in Europe still have forced heirship regimes. Accordingly, many testators in Europe or Canadians with foreign assets may wish to avoid having this system imposed upon them. Furthermore, dependant’s relief legislation can vary extensively between each state and it is not difficult to imagine why a testator may choose to circumvent a nation with a more stringent application of this type of legislation.

As the practical effects are just now starting to emerge, there is still some uncertainty as to how effective the changes will be. For instance, there is likely to be some discussion with respect to what “manifestly more closely connected” means and it remains to be seen whether a test will be developed to determine it. In the meantime, those with foreign assets may wish to review their foreign wills and consider what the effects of these changes may be in their situation. If need be, they may also want to consider making an election pursuant to the regulation.

Thank you for reading.

Suzana Popovic-Montag

01 May

A Dutch Treat; Conflict of Laws and Estate Administration – Which Law Governs? – Hull on Estates Podcast #57

Hull & Hull LLP Hull on Estates, Hull on Estates Tags: , , , , , , , , 0 Comments

Listen to "A Dutch Treat; Conflict of Laws and Estate Administration – Which Law Governs?"

Read the transcribed version of "A Dutch Treat; Conflict of Laws and Estate Administration"

During Hull on Estates Episode #57, Justin de Vries and Megan Connolly discuss an ongoing client matter which has come out of the Netherlands.  This matter raises issues of conflict of laws, the Divorce Act, the Succession Law Reform Act, R.S.O. 1990, c. S.26, and dependant support claims.

For more information on the conflict of laws, as it relates to this case, please see:

  • McCallum v. Ryan Estate, [2002] O.J. No. 1088 (SCJ)
  • Re Montizamber Estate, [1973] O.J. No. 1035 (SCJ)
  • Smallman v. Smallman Estate, [1991] O.J. No. 1718 (OJC – Gen. Div.).

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