Recent amendments to Canada’s Divorce Act will come into effect on July 1, 2020. While many of these changes may not be directly relevant to estate law, estate practitioners may nevertheless wish to familiarize themselves with these developments before July.
The amendments introduced under Bill C-78 serve a number of objectives, including the advancement of the best interests of the child and increased access to justice. They can be briefly summarized as follows:
- New criteria, independent of the Children’s Law Reform Act, in respect of the best interests of the child, taking into account the child’s views and preferences;
- Updates to terminology designed to enhance access to justice and focus on the responsibilities of parents owed to their children: for example, custody orders will soon be referred to as “parenting orders”, and access will instead be known as “contact”;
- The removal of presumptions as to equal parenting time and maximum contact being in the best interests of the child.
The new Divorce Act also imposes a duty upon counsel to encourage family dispute resolution unless clearly inappropriate in the circumstances, in a manner consistent with Rule 3.2-4 of the Law Society of Ontario’s Rules of Professional Conduct. Some provinces are expected as a result to introduce legislation providing judges with the discretion to direct parties to family mediation and/or parenting coordination (as has already happened in British Columbia).
Bill C-78 has also resulted in updates to the Family Orders and Agreements Enforcement Assistance Act. This act, which already facilitates access to information held by financial institutions with respect to the assets of debtors, will soon permit access to income information from Canada Revenue Agency for the purposes of recalculating support. The enhanced act is expected to reduce costs to parties and to courts of obtaining necessary disclosure.
Thank you for reading.
Other blog entries that may be of interest:
Disinheritance has long been a subject replete with interest. Is it a doleful mishap, a strange whim rooted in spite, a tragedy, or is it just desserts and a shield by which elderly persons can impose good behaviour on their successors? Charles Dickens was fascinated with the subject. From Great Expectations to Martin Chuzzlewit, many of his tales include fabulously wealthy testators, parasitical and destitute minor relatives, wronged rightful heirs, family bonds eroded by greed, artifice and deception – and often, in the end, a just outcome. Similar to how the poignancy of this theme stirred Dickens’ readers, aggrieved disinherited parties are often so stirred, to put it mildly, that they commence all-out legal warfare – quenching their scorn with the costly and sometimes blackened bread of estate litigation.
From the testator’s point of view, there is no foolproof method of disinheriting a child. It certainly helps if the child is not dependent, is an adult, has no basis for expecting anything, and there is a forceful, probative reason for the disinheritance (i.e. “so-and-so didn’t let me see my grandchildren”). It might be a good idea for a testator to explicitly state that he or she is disinheriting a child, lest the child later make the argument that the omission was a slip-of-the-mind rather than deliberate disinheritance. The testator may also include a clause explaining the rationale, though this can be dangerous – disinheriting someone out of racism (Spence v. B.M.O. Trust Company,  O.N.S.C. 615 at paras. 49-50).
Some drafting solicitors may suggest giving a small, nominal amount to the otherwise disinherited child – to partially appease the child, appear more moderate to a judge, or otherwise “save face”. The problem with this, however, is that as soon as someone is a beneficiary, he or she may be able to invoke beneficiary rights, such as objecting to the passing of accounts.
As for disinherited children, they may have legal recourse, such as section 58(1) of the Succession Law Reform Act, which gives the court discretion to determine if “adequate provision” has been made for a testator’s “dependants”. In Tataryn v. Tataryn Estate,  2 S.C.R. 807, the Supreme Court overturned the explicit disinheritance of a son and wife because it found that the testator failed his “moral obligation” to provide for them. If a dependant support claim leads nowhere, a disinherited child can always challenge the will, for the wellspring of arbitrary disinheritance is often incapacity or undue influence.
It is hard to lose a parent. Hard, too, is the loss of an inheritance. Keeping this in mind, testators who wish to prevent a conflagration of litigation might opt not to light the spark of disinheritance. If they feel the circumstances demand it, however, they should work with their estate planners to fortify their legal positions against the storms which might otherwise gather.
Thank you for reading,
Suzana Popovic-Montag and Devin McMurtry
With the enactment of Rule 75.1 of the Rules of Civil Procedure, those involved in disputes relating to an estate, trust or substitute decision-making matter in Toronto, Ottawa or the County of Essex are referred to mediation unless there is a court order exempting it under Rule 75.1.04.
As lawyers, “mediation” is a term we are familiar with. However it may not be as familiar to clients. Many of them may have never heard of “mediation” before. As such, if you or a client have an upcoming mediation, it is important to prepare early to avoid being caught off guard during the mediation.
What is Mediation?
Mediation is a form of alternative dispute resolution where people can settle their disputes outside of court. It is a voluntary process in which the parties meet with a neutral third-party (referred to as the “mediator”) who provides them with assistance in negotiating a settlement. The mediator does not impose a judgment as the process is led by the parties.
Mediation vs. Litigation
The big “pull factor” to mediation is that it vastly differs from litigation. The major differences include:
- Decision-Making: With mediation, the parties decide the outcome but with litigation, a judge imposes his or her decision upon the parties
- Private vs. Public Process: Mediation is a private and confidential process, whereas litigation is a public process
- Costs: The costs of mediation are typically lower than that of litigation
- Time: The mediation process tends to be faster than litigation
- Adversarial vs. Non-Adversarial: Mediation is viewed as a non-adversarial process, whereas litigation is viewed as an adversarial process
Preparation for Mediation
Preparation for mediation should start well in advance of the mediation date.
Preparing the Client
Start by explaining to the client what mediation is and how the process works. Assure the client that the mediator will be a neutral facilitator and that abusive behaviour by the other party will not be tolerated.
As part of discussing the mediation process with the client, let the client know about the time commitment that mediation entails. The mediation could last the entire day or even multiple days.
Determine the client’s interests and goals for the mediation. Are they looking to settle the case at mediation or are they prepared to go to trial? What types of offers would they be willing to accept?
Preparation for the Lawyer
Know the mediator’s background and approach beforehand. Is the mediator someone who has a background in estates law? Are they a lawyer? Are they a former judge? Knowing the answers to these questions can help the lawyer determine what approach would be the most beneficial to employ during mediation.
Prepare a comprehensive mediation brief and send it to the opposing counsel and mediator well in advance of the hearing date. A comprehensive mediation brief can maximize a lawyer’s presentation at the mediation. It is helpful to include copies of all relevant documents, such as the wills in question, within the brief. Additionally, it might be helpful to include a chronology of events as a schedule to the mediation brief.
If the mediation results in a settlement, ensure that the terms of the settlement are formally documented and that each client has signed the document. In some cases, however, a “cooling-off period” of one or two days from the proposed settlement might be necessary.
At the end of the day, the best approach a lawyer can take in preparing for mediation is to know the mediator, prepare their documents ahead of time and provide the client with as much information about the mediation process as possible. The more prepared the lawyer and the client are, the smoother the mediation will go.
For more information on preparing your client for an estate mediation, visit this link.
Thanks for reading,
Ian Hull & Celine Dookie
“What could be more Canadian than Toronto neighbours arguing about building an addition on a house? Home owners arguing about a maple tree, of course.”
And so begins the saga of Allen v. MacDougall, 2019 ONSC 1939, a decision of Justice Morgan.
There, the Allens wanted to build an extension to their Moore Park home. To do so, they wanted to remove a tree that was on the property line between their property and their neighbours, the MacDougalls.
The Allens had obtained municipal permits to cut down the tree. However, as the court noted, the permits were necessary as a matter of regulatory compliance: they did not reflect any adjudication of property rights.
The MacDougalls argued that as the tree was on the boundary line between the properties, it was the common property of both adjoining owners. This was confirmed by The Forestry Act.
The Allens countered with an assertion that the tree constituted a “nuisance”, and therefore should be removed. “The law of nuisance seeks to balance the competing rights of owners – one neighbour to do what he wants and the right of the other neighbour not to be interfered with”.
The court held that although the tree was interfering with the proposed addition, it was not interfering with the Allens’ current use and enjoyment of the property. Further, the court found that no reasonable alternative to destroying the tree was explored. The application for an order authorizing the destruction of the tree was dismissed.
On the issue of costs, reported here, the Allens were ordered to pay the MacDougalls $77,000 in costs. This was based on partial indemnity costs up to the time of an offer to settle by the MacDougalls, and substantial indemnity costs from the time of the offer.
So, it appears, the tree still stands. However, I expect that the neighbourly relations between the parties have been clear-cut.
To read about one expensive dock, see my blog, here.
Have a great weekend.
When we last blogged here on the issue of electronic devices at borders, a Toronto lawyer, Nick Wright, had had his phone and laptop seized by custom officials after he refused to provide password access because solicitor-client privileged information was on the devices.
The authority under which such searches are taking place is the Customs Act, by which courts have previously interpreted “goods” as including cellphones. However, the case law is dated, and there has yet to be a constitutional ruling on the issue.
This may soon change, as Mr. Wright has, together with another lawyer, taken the matter further by applying to the Federal Court seeking a result that would reportedly include declarations that (i) searches on electronic devices without probable cause or search warrant are a breach of the Canadian Charter of Rights and Freedoms, and (ii) searching lawyer-client privileged material similarly constitutes a Charter breach.
The significance of the issue is stressed in the following reported statement of Mr. Wright:
“Solicitor-client privilege is . . . of the utmost importance in the free and democratic society and a fundamental principle of justice, and it’s for the benefit of clients, so individuals,” he says. “In an adversarial system like we have, it’s important that the public be able to consult with their lawyers, in order to participate in the legal process and to have the federal government thieving solicitor-client privilege information undermines our legal system and undermines the adversarial process.”
Until the case is determined, lawyers should assume that information covered by solicitor-client privilege is not protected from search at a border. Accordingly, further to the suggestion of the Canadian Bar Association, using cloud technology and erasing all privileged information from devices is the safest course of action.
We will be keeping an eye on this litigation, and hope to see an updated and meaningful pronouncement on the issue of a reasonable expectation of privacy for lawyers at the border.
Thanks for reading,
Sometimes, you are added as a party to a proceeding when you don’t really want to be. In other cases, a proceeding is started, and you are not a party, but want to be. What can be done about this? Intervention.
Under Rule 13.01(1) of the Rules of Civil Procedure, a person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims:
- an interest in the subject matter of the proceeding;
- that the person may be adversely affected by a judgment in the proceeding, or
- that there exists between the proposed intervenor and one or more of the parties a question of law or fact in common with one or more of the questions in issue in the proceeding.
Rule 13.01(2) adds another consideration. The court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding.
Intervention was considered in the decision of Arnold v. Arnold, 2019 ONSC 3679. There, the proceeding involved a Power of Attorney dispute between 3 of the incapable person’s children. The issue was whether a 2011 Power of Attorney, which appointed children 1, 2 and 3 as attorneys, governed or whether a 2019 Power of Attorney, which only appointed children 2 and 3 as attorneys governed.
The proposed intervenor was child 4. He was not named as attorney in any of the Powers of Attorney, and was not a party to the proceeding. Child 4 was diagnosed with schizophrenia and lived in his mother’s, the incapable person’s, house. He was receiving support from her. He sought to intervene to ensure that his needs were protected.
The court considered the criteria for intervening, and refused to allow child 4 to intervene.
As to the first criteria, the court found that essence of the application was who was to be responsible for the management of mother’s property, not how it was to be managed. While child 4 may have an interest in how the property was being managed, he had not genuine interest in who.
Regarding the second criteria, child 4 acknowledged that he was not adversely affected by the management of mother’s property, as long as the responsible person fulfills that role properly. The court added that child 4 would benefit from the determination of the question raised in the proceeding, as he would then know with whom he is dealing.
With respect to the third criteria, child 4 argued that he had potential claims as against his father’s estate and his mother for child support. The court found that the questions raised in those potential proceedings were not the same as the questions raised in the existing proceeding regarding who was to care for mother. Further, child 4’s lack of intervenor status would not prejudice his claims.
The court also found that allowing child 4 to intervene would result in undue delay and prejudice. The proceeding was already being expedited, and was scheduled to be heard two weeks after child 4’s motion to intervene. Allowing child 4 to intervene would likely delay the proceeding. Had child 4 moved to intervene sooner, this might not have been the case.
Costs were awarded against child 4. However, due to his being on ODSP, costs were awarded against child 4 in the amount of $4,000 to each of the other groups of litigants. Payment was deferred until child 4 received his share, if any, of his mother’s estate.
Thanks for reading.
On May 5, 2019, CBC reported on a story of a lawyer who had his cell phone and laptop seized by the Canada Border Services Agency when he refused to give them his passwords.
According to the report, Nick Wright was returning to Canada after a 4 month trip to Guatemala and Colombia. After his bags were searched, the Canada Border Services officer asked for the passwords to his phone and laptop, so that they could be searched as well. Wright refused, telling the officer that his devices contained confidential solicitor-client information. His devices were then confiscated, to be sent to a government lab which would try to determine the passwords and search the files.
According to Canada Border Services, digital devices are classified as “goods”, and Canada Border Services is allowed to examine the goods, including any electronic files on the device, for customs purposes. If a traveller refuses to reveal their password, Canada Border Services may seize the device. According to the policy manual, although an arrest would “appear to be legally supported, a restrained approach will be adopted until the matter is settled in ongoing court proceedings.”
U.S. customs and border protection officials have similar rights to search devices. Refusal to disclose passwords may result in confiscation or a denial of entry.
Such digital device searches do not occur frequent. In the 17 months between November 2017 and March 2019, 19,515 travellers entering Canada (0.015% of all travellers) had their digital devices examined by Canada Border Services.
The Canadian Bar Association warns about the risks of such searches to lawyers. Lawyers have a duty to keep client communications private. This applies to all information about a client or former client. The duty extends to staff, as well. “Your client has a right to privacy which requires you not to disclose to anyone, with exceptions, when any communications between you relate to legal advice sought or given.”
The Canadian Bar Association says that a breach could result in a loss of client trust, a client lawsuit for negligence, an E&O claim, disciplinary action and public criticism.
The Canadian Bar Association suggests that when crossing a border, lawyers should travel with a “clean device”. They should use cloud technology to store any solicitor-client information. Lawyers should erase all privileged information from their devices, including contact lists with clients’ names, addresses and contact information. The search by border services does not allow them to access information on the cloud. Once across the border, this information can easily be reinstalled from the cloud.
Effective January 1, 2019, new rules apply to a motion by a lawyer for removal as lawyer of record.
Under Rule 15.04 of the Rules of Civil Procedure, a lawyer may bring a motion to have him or herself removed as lawyer of record. The old Rule was silent on whether other parties to the litigation, other than the client, had to be served. Under the recent amendments, it is now clear that such a motion must be brought on notice to every other party. However, a motion record need not be served on every other party: just the notice of motion.
The new Rule goes on to provide that the lawyer making the motion shall ensure that any information in the notice of motion or motion record that is subject to solicitor-client privilege, or that may be prejudicial to the client, including the grounds for the motion, is redacted or omitted from the notice of motion that is served on the other parties, and from the motion record that is filed with the court. At the hearing, the lawyer is to provide the presiding judge with a complete and unredacted version of the notice of motion and motion record. This is to be returned to the lawyer after the hearing, and does not form part of the court file.
Under the new Rule, it is likely that the court will require greater detail as to the precise reason for the removal, rather than a general statement such as “breakdown in the solicitor-client relationship”. The new Rule allows the lawyer to set out the precise reason for the removal, without disclosing those reasons, at least to the other parties to the litigation.
A question, however, remains as to whether the lawyer can disclose solicitor-client communications, if only to the judge. Arguably, information subject to solicitor-client privilege should not be divulged to a judge, even in the context of a motion by a lawyer for removal
The amendment was the subject of comment in the decision of Solutions Construction Management v. 1971538 Ontario Inc., 2019 ONSC 503 (CanLII). There, the plaintiff brought a motion for summary judgment. The defendant’s lawyer had recently brought a motion to remove him or herself as lawyer of record, and the defendant therefore sought an adjournment. The adjournment was granted. The plaintiff had been served with the defendant’s lawyer’s motion. However, they did not attend at that motion or advise the court of the pending motion for summary judgment. The summary judgment judge, in adjourning the motion, stated that:
This matter is a cautionary tale as to the significance of the recent amendment to r. 15.04 of the Rules of Civil Procedure. It may, in some circumstances, be necessary for litigants to respond to or, at a minimum, attend on the return of a motion by an opposing party’s lawyer for an order for removal from the record. That step may be necessary to ensure that the court is (a) fully informed of the status of the litigation, and (b) given an opportunity to consider the potential prejudice to other parties if counsel for one party is removed as lawyer of record.
Thank you for reading.
In case you haven’t read or heard enough about the legalization of cannabis in Canada this week, here’s more.
The legalization of cannabis in Canada may have a significant impact on estate planning. Specific issues include:
- Impact on Testamentary Capacity
Today’s marijuana is not the same as marijuana from “back in the day”. The average potency of marijuana has risen from 3.9% THC in 1983 to 15.1% in 2009. On the OCS website, the only legal retailer of recreational marijuana in Ontario, cannabis is available with a labelled THC content of 17 to 28%.
The long term effect of cannabis on cognitive functions has been documented. The immediate and long term effects of cannabis use may have an impact on testamentary capacity, much like other intoxicants or mind-altering substances.
- Impact on Bequests Conditional on Non-Use of Illegal Drugs
The use of incentive trusts is not common, but they do exist. See our blog, here, and our podcast on the topic, here. These trusts can be used to limit or restrict distributions to a beneficiary based on prohibited behavior.
An issue arises if the trust is designed to disincentive use of “illegal drugs”. The effect of the legality of marijuana may undermine the testator’s intentions.
- Insurance Issues
Numerous issues arise in the context of health and life insurance. Issues include:
- Disclosure of cannabis use and the effect on insurability and rates
- The implications of being a medical user, as opposed to a recreational user
- Whether the purchase of medical marijuana is covered by health insurance. (See our blog on this topic, here.)
- Whether a loss arising from the use of marijuana would be covered.
- Administration Issues Related to Cannabis
Issues related to administration include:
- What does the estate trustee do with cannabis possessed by the deceased?
- How is the cannabis to be valued for Estate Administration Tax purposes? (However, in light of the possession limits, this might be de minimus.)
These matters may be of greater concern in the US, where some states have legalized marijuana, while it remains illegal under federal legislation.
For a more detailed discussion of these issues from an American point of view, see “Joint wills and pot trusts: Marijuana and the Estate Planner” by Gerry Beyer and Brooke Dacus.
Have a great weekend.
As estate litigators, we’ve seen a lot of bad estates and bad estate situations. The good news is because we know the bad, we can advise clients on how to avoid it and make their estate a great one. No uncertainty, no delays, no conflicts, no nasty tax surprises.
If you want to make your estate a great one, here are five essential elements that can make it happen.
- You’ve provided a clear path to the documentation
Ideally, your executor needs the original copy of your will – as do courts to ensure a smooth probate process. So, don’t make your will (and any other estate documents) hard to locate. Whether it’s stored at your lawyer’s office, or registered with the court, or stored in a filing cabinet at home, make sure that you and your loved ones remember where your will is and know how to access it. We discuss this issue in more detail here.
- Your estate assets are easy to identify
Don’t assume your family and your executor know what you own. Many of us scatter our assets and accounts more than we realize. Make a list of all bank and investment accounts, insurance policies, major assets, and any virtual assets of value and keep this list with your will or ensure your named executor has a copy.
- Your executor is trustworthy and can access the help they need
When choosing an executor, trust is essential as the person selected must be capable of acting impartially on behalf of your estate – regardless of their personal feelings about your estate and the beneficiaries.
While your executor doesn’t need to be an accountant or lawyer or investment advisor, they do need to be able to hire the expertise that your estate might require. In other words, they need to know what they don’t know, and have the common sense to seek out the tax, accounting, and legal expertise that may be needed.
This article provides a great “quick list” of things to consider when choosing an executor.
- Everyone knows what’s in your will – in advance
It is dangerous to assume that your intended beneficiaries know what is in your will and have no questions or concerns. Talking today about your intentions and your family members’ expectations lets you address any contentious issues while you’re alive – and avoid potential conflicts after you’re gone.
Even the most well-intentioned gifts – a charitable bequest, the china cabinet to a niece, the vintage hockey cards to a grandson – can lead to questions, hurt feelings and potential conflicts.
Don’t let it happen. Make sure that everyone who might be touched by your will at death knows exactly what’s in it.
- Tax planning in place – if needed
You’re deemed to have disposed of your capital assets at their fair market value when you die. This means your estate is liable for capital gains taxes on assets that have increased in value during your lifetime. Your executors may be forced to sell estate assets to pay for the tax liability – and a forced sale may mean the assets are sold for less than their fair value.
There are many strategies available to help cover an estate’s tax liability, from the use of trusts to the purchase of life insurance. Make sure you’ve considered whether tax planning is needed for your estate, and put a strategy in place if needed.
Thanks for reading … Have a great day!