A recent decision of the Ontario Superior Court of Justice highlights the importance of preserving a surviving married spouse’s ability to elect for an equalization of net family properties within the six-month limitation period.
Upon death, a surviving married spouse in Ontario can elect for an equalization of net family properties under Sections 5 and 6 of the Family Law Act instead of taking under the predeceasing spouse’s will or, if the spouse has not left a will, on intestacy. Subsections 6(10), 6(11), and 7(3)(c) of the Family Law Act provide that the surviving spouse must ordinarily make an election within six months of date of death and not after that date. The Court may, however, extend the election deadline in the event that: (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and, (c) no person will suffer substantial prejudice by reason of the delay (subsection 2(8) of the Family Law Act).
Courts have reviewed the circumstances in which an extension is typically ordered. The requirement that the delay be incurred in good faith has been interpreted as meaning that the party has acted honestly and with no ulterior motive (see, for example, Busch v Amos, 1994 CanLII 7454 (ONSC)).
In Mihalcin v Templeman, 2018 ONSC 5385, a surviving spouse had commenced two claims with respect to the estate of her late husband and an inter vivos gift made to a live-in caregiver. However, neither of the proceedings had sought any relief relating to an equalization of net family properties, nor did the wife take any steps to make an election or to extend the time within which she was permitted to do so. The Court reviewed whether the delay in making the election was in good faith. The evidence regarding the reasons for the delay in electing for equalization were considered to be vague and insufficient to satisfy the evidentiary burden that the delay was incurred in good faith. Accordingly, the applicant was not permitted to amend her pleadings to incorporate this relief.
Justice Bruce Fitzpatrick commented as follows with respect to the importance of limitation periods, generally (at para 48):
I am mindful of the general importance of limitation periods for the conduct of litigation. There is an obligation on parties to put forward all known legitimate claims within certain time limits. In this case, the time limit was relatively short. I think it cannot be readily ignored. The evidentiary record is not sufficient for me to say that justice requires me to exercise my discretion in favour of allowing [the applicant] to amend her claim so as to include a claim for equalization in all of the circumstances.
Where an equalization of net family properties may be sought at a later time (for example, pending the outcome of a will challenge or dependant’s support application), it is prudent to seek an extension well before the expiry of the six-month limitation period as courts may or may not assist a surviving spouse in seeking this relief down the road, if and when it may become advisable.
Thank you for reading,
Other blog entries/podcasts that may be of interest:
- When is it Appropriate to Extend the Time Granted in Favour of Equalization Under the Family Law Act?
- Equalization Claims and Unequal Division of the Net Family Property
- Family Law Equalization Claims and Bankruptcy
- Consolidation of Family Law Act and Dependant Support Claims
A decision released earlier this week highlights the importance of a complete Management Plan supported by evidence when seeking one’s appointment as guardian of property.
Sometimes, the necessity of filing a Management Plan is viewed as a formality without proper attention to the details of the plan. However, the failure to file an appropriate Management Plan may prevent the appointment of a guardian of property, putting the administration of the incapable’s property in limbo.
In Connolly v Connolly and PGT, 2018 ONSC 5880 (CanLII), Justice Corthorn declined to approve of a Management Plan filed by the applicant and, accordingly, refused to appoint her as guardian of property. The Management Plan was rejected for the following reasons (among others):
- it did not address an anticipated increase in expenses over time (including when the applicant was no longer available to serve as the incapable’s caregiver and he may incur alternate housing costs);
- there was no first-hand evidence from BMO Nesbitt Burns or Henderson Structured Settlement with respect to the net settlement funds in excess of $1.4M and their payout and investment in a portfolio on the incapable’s behalf;
- the Court was concerned that stock market volatility could threaten to deplete the invested assets;
- the Public Guardian and Trustee had strongly recommended that the applicant post security, the expense of which was reflected as a deduction from the incapable’s assets (while not suggested that this was unreasonable, Justice Corthorn took issue with the absence of any case law or statutory provision cited by the applicant in support of the payment of the expense by the incapable rather than the applicant herself); and
- while the applicant had agreed to act as guardian without compensation, the plan did not contemplate how compensation would be funded if claimed by a potential successor guardian.
Notwithstanding that neither the incapable nor the Public Guardian and Trustee had opposed the Management Plan or the appointment of the applicant as guardian of property, Justice Corthorn found that the appointment of a guardian to manage over one million dollars in settlement funds was “contentious” and, accordingly, under Rule 39.01(5) of the Rules of Civil Procedure, direct evidence from a representative of the financial institution was required. In short, although the applicant was accepted as being a suitable candidate for appointment as guardian of property (and it was anticipated by the Court that she would ultimately be appointed), the Court was not satisfied on the evidence available that the management of the incapable’s property in accordance with the contents of the Management Plan was consistent with the man’s best interests.
While Justice Corthorn declared the individual respondent incapable and in need of assistance by a guardian of property, Her Honour adjourned the balance of the matter, suggesting that the applicant’s appointment as guardian of property could be revisited once additional evidence was filed in support of the contents of the Management Plan and/or the plan was further revised.
Thank you for reading.
Other blog entries and podcasts that may be of interest:
It is with great pleasure to announce that myself, Ian Hull, and Lionel Tupman will be co-chairing a professional development program on Essential Evidence for Estate Litigators through the OBA.
The program has been created specifically for estate litigators and will run over three evenings on April 5, May 17, and June 6, 2018.
Details of the program can be found by clicking here.
This program is a must for anyone who litigates in the area of estates, wills, and trusts!
I recently came across the decision in Campbell v Campbell, 2017 ONSC 2139. This is a recent decision with respect to two motions brought within an application for the interpretation of the last will and testament (the “Will”) of the late Howard Campbell (the “Deceased”). While the decision focuses on the various procedural matters at issue in the motions rather than the interpretation question at issue in the application, the decision also provides a brief summary of the facts which raised an interesting question for me regarding the admissibility of extrinsic evidence.
The interpretation concerns the Deceased’s Will, which contains three seemingly incompatible bequests, as follows:
- Paragraph 3(b) of the Will directs the estate trustee “to pay my debts, funeral and testamentary expenses, and to transfer the residue of my estate to my wife, if she survives me for a period of thirty days, for her own use absolutely”;
- Paragraph 3(c) of the Deceased’s Will directs the estate trustee “to deliver to my wife, for her use and enjoyment for life, all articles of personal domestic and household use or ornament belonging to me at the time of my death…and on her death, to divide all such articles among my children…”; and
- Paragraph 3(d) of the Will directs the estate trustee “to divide the residue of my estate equally between my wife (if she survives me for a period of thirty days) and my children, Kim, Howard, Rory, Cherie, Gina, Casey and Patrick, if then alive…”.
There appear to be four possible interpretations of the Deceased’s Will based on the above clauses:
- One hundred percent of the estate is left to the Deceased’s wife;
- The Deceased’s wife is given a life interest in personal property, which is later to be divided amongst the Deceased’s children;
- Fifty percent of the Deceased’s estate is to be left to his wife, and the other fifty percent is to be divided amongst the Deceased’s children; or
- The Deceased’s wife and the Deceased’s children are each to receive one-seventh of the estate.
In interpreting wills, Courts must first look to the language of the will to ascertain whether the testator’s intention can be discerned from the will itself. If the Court is unable to determine the testator’s intention from the will alone, it may then consider the surrounding circumstances known to the testator at the time that he or she made his or her will.
The surrounding circumstances that may be considered include only indirect extrinsic evidence, and not direct extrinsic evidence. Indirect extrinsic evidence consists of such circumstances as the character and occupation of the testator, the amount, extent and condition of his property, the number, identity, and general relationship to the testator of the immediate family and other relatives, the persons who comprised his circle of friends, and any other natural objects of his bounty. Direct extrinsic evidence would include, for example, instructions given by the testator to his solicitor in respect of the preparation of his will, or direct evidence from other third parties about the testator’s intentions.
As discussed in the decision of Rondel v Robinson Estate, 2011 ONCA 493, an exception to the general rule that direct extrinsic evidence is not admissible is in circumstances where there is an “equivocation” in the will, meaning that the words of the will in question apply equally well to two or more persons or things. Equivocation should not be equated with either ambiguity or mere difficulty of interpretation
One of our recent blog posts discusses a case where extrinsic evidence was not permissible. In that case, the court found that the language of the will in question was not equivocal, and accordingly, extrinsic evidence was not admitted. However, in the facts described above, it appears that the Deceased’s Will may provide an example of a situation where there is an equivocation, given that there seem to be four alternative interpretations.
As further discussed in the Rondel v Robinson decision, when direct extrinsic evidence, such as third party evidence of a testator’s intentions are admitted, this can give rise to reliability and credibility issues. Accordingly, it is important that the admissibility of direct extrinsic evidence be restricted, and permitted only when the rules of interpretation and construction are insufficient to interpret equivocal language.
Thanks for reading,
Other Blog posts that may be of interest:
As a part two of my blog from Tuesday, the Superior Court recently released a decision on the issue of disclosure for surveillance evidence.
The litigation in Bishop-Gittens v. Lim also arose from a motor-vehicle accident. In this particular case, the Plaintiff brought a motion, prior to opening submissions at trial, to exclude surveillance evidence that had been gathered by the Defendant. The issue before the Court was whether the Defendant should be allowed to rely on the surveillance and video footage for impeachment purposes under the following set of circumstances:
- there was no reference to surveillance in the Defendant’s affidavit of documents, as none had been conducted at that time;
- during the examination for discovery, the Defendant advised the Plaintiff that no surveillance had taken place;
- surveillance was conducted one month after the Defendant’s examination for discovery and over various days two years after the initial surveillance;
- the Defendant did not deliver a revised affidavit of documents in advance of trial; and
- there was no disclosure of the surveillance evidence until a letter disclosing the particulars of the surveillance, without a copy of the surveillance evidence itself, was delivered to the Plaintiff less than one month before trial.
Justice McKelvey concluded that the Defendant was in breach of the Rules, and
“In light of the defence’s failure to disclose the surveillance information in a prompt manner, it is apparent that this evidence may not be referred to during the trial unless leave is given by this court. The test for leave in connection with both a failure to disclose a document under rule 30.08 and the failure to correct an answer on discovery under rule 31.09 is governed by rule 53.08. This rule provides that where evidence is admissible only with leave of the trial judge, “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.”
The case law makes it clear that, in considering whether leave should be granted under rule 53.08, a trial judge must grant leave unless to do so will cause prejudice that cannot be overcome by an adjournment or costs. See Marchand (Litigation Guardian of) v. The Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 OR (3d) 97 (ON CA). As noted in the Iannarella decision, this mandatory orientation is understandable, since relevant evidence, including surveillance, is ordinarily admissible.”
Ultimately, Justice McKelvey allowed the Defendant to rely on the surveillance evidence only for the purposes of impeachment. The present circumstances before Court was distinguished with Iannarella because the trial not yet begun and neither party had taken any steps at trial which could result in prejudice by not knowing that this evidence may be introduced.
Thanks for reading (again)!
Earlier this year, the Ontario Court of Appeal released a lengthy decision in respect of a party’s obligation to disclose surveillance evidence throughout the litigation process if one intends to rely on such evidence at trial.
The factual background of Iannarella v. Corbett arose from a personal injury claim relating to a rear-end collision that occurred on a snowy winter evening. The Plaintiff claims that he suffered a rotator cuff injury to his left shoulder when the Defendant failed to stop in time before he collided with the Plaintiff’s vehicle. According to the Defendant’s testimony,
“there was nothing further he could have done to avoid the collision and repeatedly said that the accident was caused by “mother nature”. He told Mr. Iannarella at the scene: “Sorry, but I don’t control mother nature.”
While the Defendant may not be in control of mother nature, he was in control of his conduct throughout the proceedings.
In defence of the Plaintiff’s claims for damages, the Defendant retained private investigators to conduct surveillance on the Plaintiff over various time periods between 2009 and 2012. As the result, 130 hours of surveillance was recorded after the accident on February 19, 2012. However, the existence of the surveillance was not disclosed to the Plaintiff in an affidavit of documents nor were its particulars made known to him.
At trial, the Defendant sought to use the surveillance footage as evidence of the functionality of the Plaintiff’s left arm after the accident. Ultimately, the Court of Appeal found that the use of surveillance evidence at trial to be improper as “a form of trial by ambush”. The Court of Appeal was adamant that the disclosure obligations required by the Rules of Civil Procedure must be followed to ensure fairness and prompt settlement discussions.
In essence, as a general rule of thumb, a party may not rely on surveillance evidence if it is not disclosed through an affidavit of documents. Disclosure must be made either in full or as a privileged document, depending on whether the evidence is relied upon substantively or for impeachment purposes.
Thanks for reading!
In one of my blogs earlier this summer, I discussed the new Rule 20 of the Rules of Civil Procedure with respect to summary judgment and the two approaches to its interpretation. One takes a narrow view that the test has not changed much, and the other, more expansive view, is that the new rule significantly expands the powers of the motion judge.
Pursuant to an order of the Honourable Associate Chief Justice for Ontario, the Ontario Bar Association (“OBA”) was appointed as Amicus Curiae to render assistance to the Court on the meaning and scope of Rule 20 in the group of five appeals heard by the Ontario Court of Appeal this summer. The Court’s decision will interpret Rule 20 and provide some guidance regarding the scope of the new powers and the implications for the rest of the proceeding.
In its factum, the OBA does not comment on the merits of the individual appeals but does address the following issues:
1. Whether the test for summary judgment has changed in that once a motion judge has exercised the powers under Rule 20.04 (2.1) & (2.2), is there any limitation on his or her ability to find facts and to grant or refuse judgment that would not apply to a judge who has conducted a full trial?
2. When is it appropriate for the motion judge to weigh evidence, evaluate and draw reasonable inferences in order to grant or refuse summary judgment under Rule 20.04(2.1)?
3. When is it appropriate to hear evidence under Rule 20.04(2.0)?
4. What are the principles to be considered in issuing orders under Rule 24.05?
For the answers to these questions and more, see the factum for yourself here.
We will be looking forward to hearing from the Court of Appeal itself on these issues. Stay tuned.
Sharon Davis – Click here for more information on Sharon Davis.
Medical Records are one of the most important categories of evidence available to the estate litigator. In most cases, medical records from health care providers who treated a testator in and about the time a Will was made will be seen as the most persuasive evidence available because the author of such records will be seen as both (i) possessing some degree of expertise related to the assessment of capacity and (ii) exhibiting complete objectivity as a witness (unlike the family members who may be contesting capacity).
In Ontario, the College of Physicians & Surgeons of Ontario (“CPSO”) has posted a policy on its website providing the public with information concerning medical records and what they are required to contain. Not surprisingly, security and privacy of medical records is one of the foremost concerns. Of particular interest is the fact that one of the “principles” of good record keeping as mandated by the CPSO is to maintain “information essential to others for a wide variety of purposes…including legal proceedings”
For its part, the Ministry of Health and Long-Term Care has stringent requirements for the production of Claims Reference Files providing details of all health care providers who have provided services to a deceased client. Typically, a Certificate of Appointment of Estate trustee With a Will or a Court order will be required to obtain a Claims Reference File for a Deceased.
David M. Smith – Click here for more information on David Smith.
The Rules of Civil Procedure are the the Barrister’s Bible. While we may not keep them on our bedside tables, they can be found on every good litigator’s desk as well as scattered throughout the office in strategic locations.
As lawyers, we generally have good memories for anything logical or analytical – case names can be remarkably pulled out of a hat at a moment’s notice. Not quite so for the Rules. Why? Because they aren’t always self evident or logical, especially when they work in tandem with other legislation that qualifies or expands on them. For example, did you know that a person who is “incapable” can, nonetheless, be “competent”?
Under Rule 31.03 (5)(b) a person who has been declared incapable of looking after their property or personal care pursuant to the Substitute Decisions Act may be examined if he or she is competent to give evidence.
There is a prima facie right to examine an adverse party pursuant to Rule 31.03(1). All persons are presumed competent to give evidence pursuant to section 18 (1) of the Evidence Act. This presumption is rebuttable by sufficient evidence to the contrary. The onus rests on the party alleging incompetence to establish that the witness has no capacity to perceive, recollect and communicate evidence in the proceeding. (See R. v. Caron, 1994CanLII 8735 (ON CA) The evidence required for a determination of incompetence is medical evidence from a person qualified to speak with authority on the subject.
In Trypis v. Lavigne, 2008 CanLII 26266 the Ontario Superior Court sets out the general principles applicable to the issue of competency of a party to give evidence. Trypis is twist in the other direction whereby a person who was “capable”, in that there had not yet been a finding of incapacity under the SDA, was found “incompetent” to testify.
If you’d like to see more on the subject, see Natalia Angelini’s blog, The Right to Examine Incapable Persons and Minors.
Have a super weekend and thanks for reading this week.
Sharon Davis – Click here for more information on Sharon Davis.
Given the nature of estate litigation, a party to the dispute, and/or a witness that is to testify at trial, are at times elderly, in poor health, incapable of testifying or out of the jurisdiction, such that it is appropriate for their evidence to be given out of court in advance of the trial date. Rule 36 of the Rules of Civil Procedure regulates taking of evidence before trial.
A person may be examined under this Rule either by consent of the parties or with leave of the court. The court is to take into account several factors when determining whether to grant leave to order an examination before trial, which are particularized in Rule 36. These include the convenience of the witness and saving of costs. This permits the court to take a more broad approach, since previously these orders were limited to situations where it was established that the witness will likely be out of the jurisdiction or incapable of testifying.
Moreover, previously, leave of the court was necessary before the examination of a witness could be used at trial. Now, the transcript or videotape of the examination of a witness who is not a party may be used “unless the court orders otherwise”, and the witness shall not be called to give evidence at trial except with leave of the court. In contrast, the transcript or videotape of the examination of a witness who is a party may not be used except with leave of the court or the agreement of the parties.
While it seems to me that live testimony will likely have more impact then a transcript or videotape, if the circumstances warrant it, this is a handy tool to avoid difficulties and complications in attempting to get witnesses and/or parties on the stand when the trial date arrives, and ensures the evidence is preserved and gets before the court.
Have a great day,