Part V of the Succession Law Reform Act (“SLRA”) provides the legislative framework for claims by a dependent of an estate. It sets out:
(i) who is a dependent;
(ii) what rights a dependant has in relation to the estate;
(iii) the circumstances the court should consider in determining the amount of support that should be awarded; and
(iv) the kinds of orders the court can make for the satisfaction of a dependent support claim.
Rule 60.11 of the Rules of Civil Procedure explicitly states that a party may pursue a contempt motion in order to pursue those who violate court orders other than for the payment of money.
Some have argued that, even in the face of the language of Rule 60.11, support orders involving the payment of money should be enforceable through a contempt proceeding.
In 2000, in its decision of Forrest v. Lacroix Estate (2000) 187 D.L.R. (4th) 280, (Ont. C.A.) the Court of Appeal set aside a contempt order made as a result of a failure to pay a SLRA dependent support award, affirming that Rule 60.11 does not permit contempt orders for the payment of money.
Burden of Proof
Although the procedure for a contempt motion is civil in nature, the actual determination is criminal in nature. Thus, the burden of proof in civil contempt proceedings is proof beyond a reasonable doubt, as apposed to the balance of probabilities. Any doubt must be exercised in favour of the person alleged to be in breach of the order. The burden of proof is the same for both civil or criminal contempt motions, as the sanctions which flow from both forms are criminal/quasi-criminal in nature.
Under Rule 60.11(5) of the Rules of Civil Procedure, a judge, in disposing of a contempt motion, may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt:
a) be imprisoned for such period and on such terms as are just;
b) be imprisoned if the person fails to comply with the term of the Order;
c) pay a fine;
d) do or refrain from doing an act;
e) pay such costs as are just; and
f) comply with any other order that the judge considers necessary,
and may grant leave to issue a writ of sequestration under Rule 60.09 against a person’s property.
The imposition of a sanction, however, is permissive not obligatory. The actual sanction will be dependent on the circumstances of the case and the mitigating/aggravating factors involved. It is clear, however, that judges have a broad discretion to fashion their sanctions.
Although Orders for contempt may be procedurally encumbering, courts will not shy away from the appropriate sanction. For example, in Sussex v. Sylvester, (2002), 62 O.R. (3d) 123 (Ont. S.C.J.), the Court noted that imprisonment was deemed to be an appropriate sanction because in the particular circumstances of the case, paying a fine would have been ineffectual.
Spousal relationships (and their breakdown) and their interaction with estate litigation are the focus of this week’s blogs. In the practice of estate litigation, there is an immense body of applicable case law and statutory authority.
For the purpose of these blogs, the term "married spouse" is used to consider those entitlements which are only granted to those spouses who fall within the definition of marriage in Ontario. The term "unmarried spouse" is used to consider the entitlements of spouses who are not married but who are conferred benefits under the provisions of certain statutes.
(i) Rights of a married spouse on an intestacy
The entitlement of a married spouse on an intestacy is statutory: Succession Law Reform Act, Part II. A surviving husband or wife, on an intestacy, receives the entire estate of his spouse if there are no children. If there are children, the surviving husband or wife still receives the first $200,000.00 of the estate and either 1/2 of the remainder if there is one child or 1/3 of the remainder if there are two of more children of the marriage.
(ii) Rights of an unmarried spouse on an intestacy A surviving unmarried spouse, on an intestacy, receives no entitlement. A spouse is defined for the purposes of Part II of the Succession Law Reform Act as either a man or a woman who is married.
Although there are some cases in other provinces which suggest that this statutory provision offends the equality provisions of the Charter, the only available statutory remedy for an unmarried spouse on an intestacy in Ontario is to bring an application for support under the provisions of Part V of the Succession Law Reform Act.
Tomorrow, we will consider the entitlements of married and unmarried spouses under a Will and their entitlements when the benefit under the Will is less than adequate.
Have a great day, David. ——–
We have made note this week of the fact that a beneficiary designation is subject to considerably less legal formality than a Will. The fact that many Canadians do not have Wills often means that the designation of a beneficiary is the primary means by which an individual engages in estate planning. This is particularly true of those in their thirties or forties whose largest assets will often be RRSPs or life insurance policies. We have noted that such estate planning has the benefit of clearly directing assets to the intended beneficiary without the need for obtaining probate of a Will.
Certainly, non-legal professionals such as financial advisors will frequently highlight the benefits to their clients of structuring their affairs in such a way as to minimize estate administration tax. Lawyers, as well, will recommend such benefits, mindful of the pitfalls associated when a beneficiary does not act as intended. For instance, where an individual designates a beneficiary of an asset, not for that person’s personal benefit but rather, to distribute in accordance with a Will or some other written or verbal instructions (ie. a secret trust), the issue of trust becomes paramount.
What if the beneficiary does not distribute the asset as the deceased intended but keeps it for herself? For the litigation lawyer, it may be a serious challenge to prove a breach of trust on behalf of disappointed beneficiaries. The designated beneficiary can simply take the position that she has received all right, title and interest in the asset. If the designated beneficiary is herself named executor of the deceased’s estate, there may well be some legitimate questions as to whether she was expected to distribute the asset in accordance with the Will. The designation, if contained in the Will, may ideally clarify whether the asset is to be subject to the terms of the Will.
Have a great weekend and we’ll be back on Tuesday, David. ——–
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – EVIDENTARY ISSUES – WHAT TO DO ABOUT ABUSE CLAIMS? – PART V
In almost every case, the majority of the evidence will come from the allegedly abused child and, as such, the strength of that evidence can be problematic. In these types of situations, one must not forget the requirement of corroborative evidence pursuant to section 13 of the Estates Act R.S.O. 1990, c. E.23, which provides that:
13. In an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
See also Schnurr B.A., "Estate Litigation – Requirement of Corroboration", 5 E.T.Q. 42.
Due to the evidentiary difficulties of these types of claims, one of the first steps that a claimant should consider taking is to obtain an expert’s opinion.
The expert’s opinion should contain evidence for the Court to consider with respect to such things as the recollections of the claimant, the details of abuse over the years and the results of both the mental and physical ramifications of that abuse.
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART II
A claim for breach of the parent/child fiduciary relationship can have an impact in the context of claims in estate litigation matters.
As is sometimes the case, parents may choose to treat their children unequally under the provisions of their will. In these kinds of circumstances, a disgruntled child may challenge the validity of the will and so become a party to estate litigation.
A further claim against the assets of the estate for breach of parental fiduciary duty may be a useful avenue for a child to pursue against the estate of a parent.
As has been known to happen, a parent may have a long-standing bias against one child or another, which is reflected in an unequal distribution of his or her estate. This long-standing bias may have been as a result of an estrangement as between the parent and the particular child. The reasons for the estrangement are usually numerous and it can be difficult to pinpoint precisely the actual reason for the unequal treatment of the child.Often, the estrangement between parent and child dates back many years and, in some situations, the breakdown of the relationship ties closely to the child leaving home at an early age and then not pursuing any meaningful contact with his or her parent.
In our view, when dealing with these kinds of cases, a careful inquiry must be undertaken into the circumstances of the estrangement, dating even back to childhood.
More to come on this interesting topic in a future blog …
All the best, Suzana and Ian. ——–
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART I
Rules of Conduct – An Estates’ Perspective: An Introduction to the ACTEC Model Rules of Conduct and the Commentaries- Part II
In addition to the basic themes of the Commentaries (see our June 9, 2006 blog), they also reflect the role that the trusts and estates lawyer has traditionally played as the lawyer for members of the family. In that role, a trusts and estates lawyer frequently represents the fiduciary of a Trust or an Estate and one or more of the beneficiaries.
In drafting the Commentaries, the authors have attempted to express views that are consistent with the spirit of the MRPC (Model Rules of Professional Conduct) as evidenced in the following passage:
"The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and the law itself."
The editors note (at page 1 of the Commentaries) that a goal of the Commentaries is to encourage a full discussion between a lawyer and a client as to the scope and the cost of the representation. Furthermore, the duties of trusts and estates lawyers are also carefully considered and described. In the U.S. jurisdictions, many of the parameters of the duties of estates and trusts lawyers are set out by opinions rendered in malpractice cases, which provide some guidance regarding some of the ethical duties of the lawyer as well.