Tag: estate law blog

24 Jun

Inaugural OBA Elder Law Day Conference

Natalia R. Angelini Elder Law, Uncategorized Tags: , , , 0 Comments

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,

Natalia Angelini

22 Jun

How Can We Combat Ageism in Law?

Natalia R. Angelini Elder Law, Estate Litigation, General Interest, Uncategorized Tags: , 0 Comments

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,

Natalia Angelini

21 Jun

Open Court Principle vs. Privacy – Is there a Clear Winner? 

Natalia R. Angelini In the News, Litigation, Uncategorized Tags: , , 0 Comments

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

14 Jan

More Streamlined Court Processes?

Natalia R. Angelini Litigation, Uncategorized Tags: , , 0 Comments

It has not always been easy to keep up with the rapid technological changes to court processes and court hearings that have been happening over the last several months. We have all needed to adapt, and adapt we have! Although, to me, in person hearings remain the ideal way in which to interact with counsel, clients and judges, I admit the Zoom court hearings have been a welcome respite from the added time and stress of the early morning drive to far-away court houses in different cities to argue one case or another. Clients may also appreciate the cost-savings that result from less paper and less travel and waiting times.

Streamlining of court processes has recently been solidified by way of several changes to the Rules of Civil Procedure, and a couple of my colleagues have podcasted about it here. This trend has now also expanded to the Supreme Court of Canada, where the leave application process is reported to be changing effective January 27, 2021. The changes can be found here, and facilitate the electronic filing of material.

Should there be more changes to come, we will keep you posted.

Thanks for reading and have a great day,

Natalia R. Angelini

12 Jan

What’s the Update on the Calmusky Case?

Natalia R. Angelini Estate & Trust, Uncategorized Tags: , , , , 0 Comments

I previously blogged about the Calmusky v. Calmusky decision here, in which decision the court concluded that resulting trust presumptions apply to the beneficiary designation under a Registered Income Fund (RIF). As such, the onus was put on the named beneficiary of the RIF to rebut the presumption that he was holding the RIF in trust for his late father’s estate. The decision was not appealed.

The Ontario Bar Association (OBA), and primarily the OBA’s Trusts and Estates section, has considered the impacts of the case and has delivered a Submission to the Attorney General of Ontario and Minister of Finance with proposed remedies.

The potential effects cited by the OBA are worrying, and include that (i) it may compel financial advisors to provide what amounts to legal advice when such designations are being made, (ii) it may increase litigation where the named beneficiaries of plans, funds and policies are not the same residuary beneficiaries of an estate, (iii) it may create uncertainty in contracts (e.g. cohabitation and/or separation agreements) that use beneficiary designations as a way to secure support payments, and (iv) it may defeat the testamentary intentions of Ontarians who previously made their beneficiary designations and cannot make new ones.

The OBA Submission proposes legislative amendments with retroactive effect to remedy the issue. Such proposed amendments are to add a subsection to each of the Succession Law Reform Act (s. 51) and Insurance Act (s. 190) clarifying that when a designation is made, no presumption of resulting trust in favour of the estate is created.

We will provide an update once we know more.

Thanks for reading and have a great day,

Natalia R. Angelini

11 Jan

How Can We Accommodate Older Witnesses at Trial?

Natalia R. Angelini Uncategorized Tags: , , 0 Comments

An aging population brings with it more older Canadians involved in the court system.  Some challenges with having older witnesses testify at trial may include:

  • memory impairments (almost 40% of people over age 65),
  • a decline in hearing (47% of people age 60-79),
  • irreversible vision loss (25% of people by age 75),
  • mobility issues (more than 25% of people by age 75), and
  • dementia (at least 90% of people with dementia are over age 65).[1]

Add to this the method in which evidence at trial is elicited – through the adversarial process of examination and cross-examination, with the witness sitting alone, apart and elevated in the courtroom, which conditions make witnesses feel uncomfortable and intimidated – and the result is less accurate testimony.

Some solutions for our older witnesses include various ways to minimize court appearances, including examining witnesses for discovery at their homes, allowing them to attend pre-trial or trial by telephone or videoconference, and allowing hearsay statements made out of court to be admitted at trial. Another very helpful option for the elderly and/or infirm is to avoid delay by taking trial testimony in advance of the trial. In Ontario, Rule 36 of the Rules of Civil Procedure allows the parties to examine a witness before trial (often video-taped), which examination can be used at trial in the place of in-person oral testimony. If the parties don’t agree on the issue, the party that wants to proceed with the Rule 36 examination would need to bring a motion seeking a court order to this effect. When deciding whether or not to allow a Rule 36 examination, the court must take into account various considerations, including:

  • the convenience of the person whom the party seeks to examine;
  • the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;
  • the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;
  • the expense of bringing the person to the trial; and
  • whether the witness ought to give evidence in person at the trial.

Rule 36 examinations certainly seem to be in keeping with the times. With the long-overdue technological strides made in our court system as a result of the COVID-19 pandemic, virtually every litigation step is now being conducted virtually (including examinations, mediations, pre-trials and trials). With this trend expected to continue after the pandemic has ended, I would imagine that we will see fewer disputes over the issue of whether or not a Rule 36 examination should proceed.

For a more comprehensive commentary on the issue of accommodating older witnesses, I refer you to the paper in the footnote below, from which I have taken just a sampling of high points in this blog.

Thanks for reading and have a great day,

Natalia Angelini

[1] Obtained from Helene Love’s paper, Seniors on the stand: accommodating older witnesses in adversarial trials, The Canadian Bar Review (Vol. 97, 2019, No. 2)

15 Oct

Holding the Reins on Dependant Support?

Natalia R. Angelini Uncategorized Tags: , , , 0 Comments

The Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, the person must be someone that the deceased (i) was providing support to immediately before death, or (ii) was under a legal obligation to support immediately before death.

Interestingly, the definition of “child” is not limited to minor children or financially dependant children. It is thus open to an independent adult child to whom no financial support was being paid immediately prior to death to apply for dependant support, premised on the argument that the deceased parent has a moral obligation to provide support. While we have seen the development and application of the moral obligation principle in Tataryn v. Tataryn Estate and Cummings v. Cummings, and although some decisions of the bench in British Columbia indicate that it is willing to apply the moral obligation principle in favour of independent adult children, in Ontario moral obligation appears to continue to be treated as but one factor to consider in the context of support claims. The fact remains that there is no legal obligation to provide support to an adult child.

A similar view may persist in the British court, which was recently reported to have disallowed an adult son’s plea for his wealthy parents to continue to financially support him, which litigation was brought after his parents significantly reduced their financial involvement. While in this instance the parents were alive and able to successfully respond to the court proceeding, had they died prior to or during the time when financial support was in the process of being reduced, would the adult son have had more success with such a claim? If his parents died subsequent to support being reduced or eliminated, would their estates still be vulnerable to a dependant support claim on moral grounds?

Although each case is fact-specific, I would not be surprised to see that in circumstances where there is a large estate and no other competing support claims, the court may work harder to striking a balance between fairness and testamentary intention, particularly where the parents are shown to have enabled a lifestyle and arguably created a dependency that they withdrew during adulthood.

Thanks for reading and have a great day,

Natalia Angelini

16 Jan

Do Rule 49 offers still work?

Natalia R. Angelini Litigation, Uncategorized Tags: , , , 0 Comments

With the loser-pays costs model firmly entrenched in civil litigation, and, for some time now, also consistently applied in most estate litigation cases, it behooves counsel to give early and ongoing consideration to putting forward an offer to settle under Rule 49 of the Rules of Civil Procedure with the objective of obtaining a more favourable costs outcome.

In order to get the benefit of the cost consequences under the Rule, such an offer (i) must be made at least seven days before the hearing, (ii) cannot be withdrawn and cannot expire before the commencement of the hearing, (iii) must not be accepted by the opposing side, and (iv) the offeror must meet or beat the offer at the hearing. However, even if this criteria is met, the court has the discretion to depart from the cost presumptions under the Rule.

Taking into account the court’s discretion, and given what feels like the release of more and more decisions where cost awards seem to bear little reflection to the costs incurred or the Rule 49 offers made, I wonder whether making a Rule 49 offer actually provides the expected benefit of a better costs outcome for the offeror.

In reading a recent article on the issue, I am reminded that there is some predictability in place. The authors review some relevant authorities, including Niagara Structural Steel (St. Catharines) Ltd. v. W.D. LaFlamme Ltd. and Barresi v. Jones Lang Lasalle Real Estate Services Inc., two Court of Appeal cases where it was held that the courts of first instance erred in resorting to the exception in Rule 49, and where the Court of Appeal reasoned as follows:

  • the purpose of the Rule is to be an incentive to encourage settlement;
  • a judge’s discretion to depart from the costs presumption under the Rule is not unfettered, and should not be exercised in such a widespread manner so as to render the general rule ineffectual; and
  • a judge should only depart from the Rule “where the interests of justice require a departure”, after giving weight to the policy of the Rule, the importance of predictability and the even application of the Rule.

Thanks for reading and have a great day,

Natalia Angelini

14 Jan

Reminders re: Certificates of Pending Litigation

Natalia R. Angelini Estate Litigation, Litigation Tags: , 0 Comments

In our estate litigation practice, we commonly seek orders permitting registration of a Certificate of Pending Litigation (CPL) against title to property that is, for instance, an estate asset that a client is seeking to preserve until the litigation is concluded.

In order to obtain a CPL, one needs to demonstrate that an interest in land is in question, and in determining whether to order the issuance of a CPL, the following legal principles ought to be considered, as highlighted in Perruzza v Spatone:

  • the threshold in respect of the “interest in land” is “whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed”;
  • the onus is on the party opposing the order for a CPL to demonstrate that there is no triable issue with respect to whether the party seeking the CPL has “a reasonable claim to the interest in the land claimed”; and
  • the governing test is that the Court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL ought to be granted.

We can see from the above that the threshold to obtain a CPL is not high; presumably the rationale being that it is more favourable to have a property in dispute secured during litigation than risk it being dissipated to the prejudice of a litigant.

Once a CPL is obtained it is prudent to assess the circumstances throughout the life of the litigation so that it is discharged at the appropriate time. As noted in Perruzza, factors the court can consider to discharge a CPL include whether the land is unique, whether there is an alternative claim for damages, whether there is or is not a willing purchaser and the harm if the CPL is or is not removed.

If the litigation stagnates, without reminders in place it is possible for the registered CPL to be left unaddressed.  These were the circumstances in Novia v. Saccoia Estate (Trustee of). The CPL had remained on title for more than 20 years and even after the defendant’s death, ultimately forcing the defendant’s executor to obtain an order dismissing the action and discharging the CPL.

Thanks for reading and have a great day,

Natalia Angelini

13 Jan

Five Litigation Lessons

Natalia R. Angelini Litigation, Uncategorized Tags: , , 0 Comments

Five seemingly simple yet essential litigation lessons are so cleverly set out in a recent Advocates Journal article by Gord McGuire that I reproduce them below, with some accompanying insights:

  1. The law is the cart. The facts are the horse.

The take-away: It is suggested that it is better to apply case law after you have persuaded a judge to lean in your client’s favour, as judges are often moved more by their sense of achieving an outcome that is fair and just than by application of the law.

  1. A picture is worth a thousand authorities.

The take-away: I can’t count the number of times I’ve heard a lawyer complain about losing a winning case or beam about winning a losing one. The author reminds us that having a convincing legal argument or supportive case-law on your side may not carry the day if the opposing side creates an image that registers with the judge. To avoid getting bested by your opponent, use physical photos if you can, and, if you can’t, create mental ones.

  1. Thinking on your feet is good. Having already done the thinking in advance is better.

The take-away: Better preparedness equals less chance of being caught off-guard by a judge’s questions. This lesson resonates with me as a great practice tip as well as a great mental health tip, since I gather from this article that I’m not alone in having tortured myself post-hearing by repeatedly running the court scene through my head with the perfectly crafted answer that I had meant to give to the judge.

  1. You and your case are in love. For the judge, it is a first date.

The take-away: Conviction in your case can be persuasive, and it may lead you to expect that a judge will take a similar view. Don’t forget that your perspective is uniquely formed by the level of intimacy you have with the case, and that a judge will give equal consideration to the opposing-side’s position. To temper your expectations, the author suggests that you can try testing the waters by dispassionately discussing your case with colleagues to gauge their reaction, without giving away which side you are on.

  1. Advocacy matters only so much, and that’s a good thing.

The take-away: Take comfort in knowing that even with the most superb lawyering, there is only so much you can do to secure victory for your client. The facts, the law and the judge’s reaction and perspective are what they are. So when a mediocre advocate defeats a superior one, take it as a mark of a justice system that is functioning as it should.

Thanks for reading and have a great day,

Natalia Angelini

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