Tag: estates

01 Aug

TO BE IN CONTEMPT OR NOT TO BE IN CONTEMPT REGARDING ORDERS REQUIRING PAYMENTS OF MONEY – THAT IS THE QUESTION PART I OF II

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In Forest v. Lacroix Estate (2000), 187 D.L.R. (4th) 280, the Ontario Court of Appeal (“C.A.”) affirmed that Rule 60.11 contempt orders cannot be used to enforce orders for payment of money. 

In Forest, a testator had named his son trustee and sole beneficiary of his estate having no provisions for his common-law wife of 19 years. Despite there being an order specifically prohibiting the dissipation of the estate, the son dissipated a significant amount of the estate assets. The Trial Judge having made a finding of contempt, ordered the son committed to jail for 9 months unless he purged contempt within 28 days by paying the common-law wife. The Court of Appeal noted, following a review of the law, that there are other means by which support orders can be enforced.    

In 2002, the C.A. in Murano v. Murano, [2002] O.J. No. 3632 relied on the reasoning in Forest and held that there was no exception for family law matters. 

In today’s and tomorrow’s blog I will touch upon the case of Dickie v. Dickie, [2007] S.C.J. No. 8, [2006] 78 O.R. (3d)1 (Ont. C.A.), in which the C.A. and Supreme Court of Canada (“S.C.C”) deal with the availability of a contempt motion in respect of the failure of a party to comply with alleged orders requiring the payment of money.

Today’s blog will set out the background to Dickie; tomorrow’s blog will deal with the decisions of the C.A. and the S.C.C.

The case involves a dispute between husband and wife. Before the C.A. was the appeal by the husband from an order finding him in contempt of Court for failing to comply with orders requiring him to secure support obligations by providing an irrevocable letter of credit and to post security for costs. The motion Judge imposed a sentence of 45 days in jail for that contempt, which the husband served immediately. The husband pursued his appeal arguing that the motion’s Judge had no jurisdiction under Rule 60.11 of the Rules of Civil Procedure to make a contempt order because the underlying orders were orders requiring him to make a payment of money.  The wife brought a preliminary motion before the C.A. submitting that the Court should refuse to entertain the appeal because of the husband’s wilful disregard for orders of the Court.

Thanks for reading. Part II tomorrow.

Craig

17 Jul

A BLACK DAY

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Given the events of last week, it is hard not to blog on the Conrad Black verdict.  Much has been written with more to come.  In one of my spring blogs, I commented, with some admiration, on Black’s perseverance in the face of overwhelming odds and noted the importance of steadfastness in litigation.  Of course, the danger for Black, as with all other litigants, is that perseverance becomes intransigence.  According to a variety of talking heads, Black had ample opportunity to settle with the shareholders and avoid the entire mess, but refused. 

I will leave it to others to comment on the justness of the Black verdict.  However, building on yesterday’s blog, which addressed the importance of gathering and putting forward the right evidence, the Black verdict is instructive.  Black’s right-hand man, David Radler, was ultimately not believed by the jury.  Black’s defence team went to great lengths to paint the prosecution’s star witness as a blagger and a liar; they obviously had some success.

What was interesting is the fact that three “small town” newspapermen were, in fact, believed by the jury of 12 ordinary men and women.  The three claimed that they were suspicious when Black tried to inject himself through non-competition agreements into the sale of newspapers.  To the jury, their evidence rang true and was credible; Black was up to no good.

In the end, Black was convicted on the evidence of strangers or third parties to the litigation.  The three newspapermen had nothing to gain by testifying.  Their evidence, presented in a sincere and congenial way, proved to be the undoing of Black.  It is trite to say that litigation is unpredictable.  However, when witnesses who have nothing to gain give evidence, it is best to sit up and take notice.

Thanks for reading!

Justin.

05 Jun

Powers of Attorney Defined – Hull on Estate and Succession Planning Podcast #63

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During Hull on Estate and Succession Planning Episode 63, Ian Hull and Suzana Popovic-Montag discuss the role of Powers of Attorney during the estate planning process. 

They define "Power of Attorney", and cover the responsibilities that accompany this role. The steps to take if you decide to revoke your Power of Attorney are also discussed, as well as the regulations of the Substitute Decisions Act which sets out some of the duties involved in Power of Attorney

24 Nov

Webster v. Webster Estate – Limitation Periods and Equalization Payments: When is it too Late? Part II

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In yesterday’s Blog, we learned that Mrs. Webster sought an order extending the six-month time limit within which she could file an election to make an equalization claim from her husband’s Estate. Today, I will consider the law and the court’s decision.

According to the court, while there was evidence to suggest that Mrs. Webster was content with her benefits under the Will during the life of Mr. Webster, the court nevertheless recognized that she was completely free to change her mind and seek an equalization payment within the prescribed time.

Section 2(8) of the Family Law Act provides that the court may, on a motion, extend the prescribed time if it is satisfied that: (1) there are apparent grounds for relief; (2) relief is unavailable because of delay that has been incurred in good faith; and (3) no person will suffer substantial prejudice by reason of the delay.

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21 Nov

Hull on Estate and Succession Planning Podcast #35 – The Family Conference – Special Needs Beneficiaries

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During Hull on Estate and Succession Planning Podcast #35, we discussed:

  • Special needs beneficiaries;
  • What the definition of a special needs beneficiary is;
  • The use of trusts for special needs beneficiaries; and
  • The proper planning for special needs beneficiaries and what happens to the assets and the trust when the special needs beneficiary dies.
21 Nov

Hull on Estates Podcast #35 – Will Challenges

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During Hull on Estates Podcast #35, we discussed the following:

  • Competing beneficiaries who join forces to challenge a Will when they do not have identical interests;
  • People that need to be served in a Will Challenge;
  • How to decide if you need your own lawyer or if you should join forces with the same solicitor; and
  • How to deal with the costs of the Will Challenge when dealing with several lawyers.
13 Nov

Contingency Fees in Estate Litigation – Part I

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For the coming week my blog will deal with the topic of contingency fees in estate litigation. This is a relatively new topic in the Province of Ontario. Contingency fees were only recently allowed, raising interesting issues in terms of the lawyer-client relationship and access to justice.

In the context of tort law (private injury), contingency fees are fairly well understood by the public in most North American jurisdictions. Although these fees were not allowed in the Province of Ontario until recently, certainly the public perception is that in private injury cases very often contingency fee arrangements, even in Ontario, have been formally or informally in practice for some time.

In any case, the Law Society of Upper Canada and the Provincial Legislature have now decided that contingency fees are acceptable in Ontario making it the last Canadian Province, and one of if not the last jurisdictions in North America to allow the practice.

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