The Honourable Mr. Justice Thomas McEwen spoke at the Estates Litigation Networking Reception hosted by the Advocate’s Society on November 23, 2015.
Justice McEwen was appointed to the Superior Court of Ontario in June, 2009 and he is currently the Civil Team Leader and Head of the Estates List in the Toronto Region. Justice McEwen spoke at length on various issues that he wishes to convey to the estates bar which is my pleasure to reiterate on this blog.
Given the volume of matters on the Estates List, Justice McEwen noted that the Court should be provided with notice of a settlement as they occur, rather than last minute notice near the time of a scheduling appointment or hearing. He advised that too many days on the list are being lost by last minute cancellations. Notice of a settlement may be provided to the Court by e-mail to email@example.com.
Moreover, he spoke of the fact that each 9:30 scheduling appointment is allocated with ten minutes of time and counsel are expected to converse with one another and resolve as much as possible prior to entering the Judge’s chambers.
In cases where there are issues relating to persons under disability on a motion for directions, the Court prefers that counsel request 10:00 a.m. hearings, rather than 9:30 a.m. scheduling appointments, in order to provide the Judge with 20 minutes to canvas such issues with counsel. Moreover, it allows the Judge to have the benefit of being able to review the full record in advance.
Lastly, communication between counsel is key in order to avoid unnecessary motions for directions.
Click here to review the Consolidated Practice Direction Concerning the Estates List in the Toronto Region as well as the relevant parts of the Consolidated Provincial Practice Direction, the Consolidated Practice Direction for Divisional Court Proceedings as well as any other relevant Toronto region-specific Practice Directions and Guides.
Thank you for reading!
This week on Hull on Estates, Natalia Angelini and Jonathon Kappy discuss issues involving minors and incapables. Specifically, they discuss accepting payment into court for the benefit of individuals under the age of majority as well as various statutes dealing with accepting payment into court.
Please leave a comment or send us an email at firstname.lastname@example.org if you have any questions.
We have blogged previously on section 35 of Ontario’s Trustee Act, which relieves a trustee who has committed a technical breach of trust but has otherwise acted honestly and reasonably. This provision may not be available to a trustee who, confronted with an ambiguous situation, fails to seek the advice and direction of the court, as is the trustee’s right under section 60(1) of the Trustee Act. Section 60(1) states:
60. (1) A trustee, guardian or personal representative may, without the institution of an action, apply to the Superior Court of Justice for the opinion, advice or direction of the court on any question respecting the management or administration of the trust property or the assets of a ward or a testator or intestate.
Justice Cullity describes the applicable principles in Merry Estate v. Plaxton, 2002 CanLII 32496 (ON S.C.) at paragraph 35:
" On the question of costs, I am satisfied that no criticism can properly be directed at Mr. Meredith for bringing this application. Section 60 of the Act entitles trustees to seek the opinion, advice and direction of the court with respect to the administration of a trust and, in cases where significant doubt exists as to the scope of their powers and responsibilities, they may not be protected under section 35 if they fail to do this. Although such applications must not be made frivolously – and not merely to relieve applicants from making decisions that are part of their responsibilities under the terms of the trust – they are entitled to have their costs paid out of the trust property if, in the opinion of the court, the application was properly brought. I believe this is such a case."
Merry Estate v. Plaxton also contains a discussion of a trustee’s right of indemnity with respect to costs properly incurred, and the relationship between this right of indemnity and litigation cost awards for trustees from trusts. In that application for the court’s advice, the trustee Mr. Meredith was awarded full indemnity for his legal expenses in bringing the application.
Have a great day,
Chris M. Graham – Click here for more information on Chris Graham.
I recently read an article composed by The Children’s Lawyer, Debra Stephens, named Minor Settlements: How to Ensure Court Approval. I found this article to be particularly helpful as the article speaks to the role of The Children’s Lawyer in litigious matters and explains the common issues that arise during settlements involving minors.
Fundamentally, it is important to understand the role of The Children’s Lawyer with respect to their involvement in settlements concerning minors, which Ms. Stephens describes as: “The Children’s Lawyer is not a party to the proceeding and is not in an adversarial role with any of the parties. Rather, The Children’s Lawyer acts as an advisor to the court, making recommendations to assist the judge in determining whether to approve the proposed settlement”.
In her article, Ms. Stephens talks about a few issues that commonly arise during settlements involving minors. One of those issues that Ms. Stephens touches on is legal fees. Ms. Stephens states that legal fees are an important factor in determining whether to approve a settlement on behalf of a minor. Factors that are relied on when considering the reasonableness of a solicitor’s account are set out in the Court of Appeal decision Cohen v. Kealey and Blaney and include:
1. time spent;
2. legal complexity;
3. degree of responsibility assumed by the lawyers;
4. monetary value of the matter in issue;
5. the importance of the matters to the client;
6. degree of skill of the lawyers, results achieved;
7. ability of the client to pay; and
8. expectation of the client with respect to the fee.
Also, another factor not mentioned in the case above is ensuring that access to justice is obtained for parties under a disability. I found Ms. Stephens’ article to be particularly useful in my practice and I would certainly recommend it to any practitioner who ordinarily runs into issues involving The Children’s Lawyer.
Thank you for reading.
Rick Bickhram – Click here for more information on Rick Bickhram.
The recent Ontario Superior Court of Justice decision of Re Steen Estate addresses the issue of getting funds paid into court pending a determination of ownership.
In that case, the deceased left a will that divided her estate equally amongst her three sons. There was also a prior “Family Agreement” in which the deceased and her three sons agreed that the deceased’s intent was that each of her three sons would receive a one third share of her financial assets upon her death. The agreement went on to provide that all existing accounts of the deceased, whether jointly held or otherwise, would be totalled, and the value divided into three upon the deceased’s death.
The plaintiff, one of the sons of the deceased was also the estate trustee, brought a claim as against the two other sons with respect to jointly held accounts held by the two other sons. It appears that the plaintiff also held a joint account with the deceased as well.
The plaintiff brought a motion requiring the two other sons to pay the monies they held jointly with the deceased into court pending a determination of the issue.
The Court considered the test for having funds paid into court under Rule 45 of Ontario’s Rules of Civil Procedure. The three-pronged test requires that the moving party show:
1. That the moving party has a right to a specific fund;
2. That there is a serious issue to be tried regarding the moving party’s right to that fund; and
3. That the balance of convenience favours granting the relief sought by the party.
The motion was dismissed. The court held that there was no “specific fund” as the joint account with one of the defendants had been transferred into his investment account: the fund no longer existed. There was no evidence with respect to the other joint accounts.
The court also found that there was no “serious issue to be tried”. The intention of the deceased with respect to dividing her estate was clear.
Finally, the court held that the balance of convenience did not favour the plaintiff. The plaintiff only sought that the defendants’ joint accounts be paid into court, and not his own joint account. The court held that it would be “grossly unfair” to require the defendants to pay their joint account funds into court while allowing the plaintiff to hold onto his joint account proceeds.
This last point seems to have resonated with the judge. The court noted at several points in the decision that the plaintiff was not seeking to have his jointly held funds be paid into court as well.
Thank you for reading,
Listen to The Question of Compensation and Complaints.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the question of compensation and complaints regarding compensation.
When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada.
In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege. Section 12 of PIPEDA grants the Privacy Commissioner express statutory power to compel a person to produce any records that the Privacy Commissioner considers necessary to investigate a complaint “in the same manner and to the same extent as a superior court of record”. The issue in Blood Tribe was whether this conferred a right of access to documents protected by solicitor-client privilege. The Court held unanimously that the broad grant did not contain the requisite specific express authority to override privilege.
The Court stated the rule that "general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed. That role is reserved to the courts. Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege."
The Court also noted that "while the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity."
Speaking of the Supreme Court of Canada, the law you’re looking for just might be in the "unreported judgments" section of the Supreme Court’s user-friendly website. How does a Supreme Court decision go unreported?
Have a great day,
Listen to Developments in Will Changes.
This week on Hull on Estates, Ian and Suzana discuss developments in will changes. They reference cases from Key Developments in Estates and Trusts Law in Ontario ed. 2008.
Listen to Dependant Relief.
This week on Hull on Estates, Natalia Angelini and Craig Vander Zee discuss dependant relief and reference a variety of cases that utilized the Succession Law Reform Act.
This week on Hull and Estates, Rick Bickhram and David Smith discuss how changes in the definition of marriage have impacted Estate Law and Estate Administration.