Tag: law

26 Jul

INSURANCE ISSUES AND VIATICAL SETTLEMENTS – PART II

Suzana Popovic-Montag Elder Law Insurance Issues Tags: , , , , , , , 0 Comments

Continuing with our review of the Canadian Centre for Elder Law Studies’ paper on viatical settlements, we note that the paper is broken down into 7 parts, starting with a brief introduction and an examination of typical viatical settlements. There is also a review of American academic articles and the study looked at the historical developments of viatical settlements in the U.S.

The study goes on to examine the current law in Canada and looks at leading policy arguments for and against removing the legal barriers to viatical settlements in Canada. The study also examines in detail the leading Canadian model for law reform drafted in 2001 by Ontario’s Financial Services Commission. The last two parts of the study include a review of several issues for reform and a conclusion to the study paper.

The origins of the project arose out of the Program Committee of the British Columbia Law Institute, whereby they identified examining the possibility of legalizing and regulating viatical settlements as an innovative area for legal reform.

After having reviewed the study paper on viatical settlements, it is clear that, while this is an innovative area of legal reform, certainly in the United States, the concept of viatical settlements is a growing trend and one that will no doubt be considered over the next few years as the increase in population puts pressure on the market forces.

Given that viatical settlements are rare in Canada, the study paper looked at the elements of a typical viatical settlement from the United States as providing the reference point. Again, while there are different approaches in the United States, the study notes (at page 3) that one commentator who recently reviewed the American market concluded that the typical viatical settlement contains six steps.

We will look at the six steps in our next blog.

All the best, Suzana and Ian. ——–

25 Jul

INSURANCE ISSUES AND VIATICAL SETTLEMENTS – PART I

Suzana Popovic-Montag Elder Law Insurance Issues Tags: , , , , 0 Comments

The Canadian Centre for Elder Law Studies has produced an excellent study paper on viatical settlements.

In the executive summary, the study paper defines a viatical settlement as a transaction in which an insured person with diminished life expectancy transfers the entitlement to receive the death benefit under the policy of insurance to another person. This other person agrees immediately to pay the insured person an amount that is less than the face value of the death benefit and undertakes to pay the premiums for the insurance policy as they come due. A

s is noted in the executive summary, in most Canadian jurisdictions, legislation directed at trafficking in insurance policies (which has its origins in the Depression), renders viatical settlements illegal. There is a small viatical settlement industry based in some of the provinces that lack this legislation. However, in the U.S., the viatical settlement industry has been very active and has, for example, focused on AIDS patients and others suffering from terminal diseases. As such, the viatical settlement industry has expanded considerably.

The aim of the study paper produced by the Canadian Centre for Elder Law Studies was to provide the groundwork for law reform in this area. More on the details of the study in our next blog.

All the best, Suzana and Ian. ——–

05 Jul

IS THERE SUPPORT AFTER DEATH? – What about Moral Obligations and the “Fair Share of Family Wealth” Analysis? – Part VII

Suzana Popovic-Montag Support After Death Tags: , , , , , , , , , 0 Comments

As you know, we have dedicated a few recent blogs (see our June 30, 2006 and July 3, 2006 posts) to the Ontario Court of Appeal’s decision in Cummings v. Cummings.

Perhaps, most notably, in determining the quantum of support to award in this decision, the Ontario Court of Appeal endorsed the concept of dependant’s support as a re-distribution of family wealth or property.

In this regard, the Court stated (at paragraph 48):

There is another reason why the Tataryn approach fits in Ontario as well. The view of dependant’s relief legislation as a vehicle to provide not only for the needs of the dependants (thus preventing them from becoming a charge on the estate) but also to ensure the spouses and children receive a fair share of family wealth, was also important to the Court’s analysis in that case.

Just how awards for support under the Family Law Act will be affected by the Cummings v. Cummings decision remains to be seen. In resolving that problem, however, consideration of both the Tataryn and the Cummings cases must be given.

We hope you enjoyed our review of this important turning point in the area of dependant’s relief, and we intend to continue to follow the issue and discuss further developments in future blogs.

All the best, Suzana and Ian. ——–

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