Canada is currently in the midst of a postal strike. Although the strike is currently “rotating” in nature, with different communities being subject to the strike on different days, it is possible that the strike could become country wide should negotiations remain unsuccessful. Although concern may immediately turn to the potential impact of a full strike upon online holiday shopping, a full national strike could also have an impact upon the legal world in relation to the service of documents.
Canada Post remains a vital service to the legal community, amongst other things remaining one of the official means of service upon a lawyer of record pursuant to rule 16.05 of the Rules of Civil Procedure. Although there are alternate service mechanisms available to serve documents upon a lawyer of record should the strike become national, such as potentially using a courier, there are certain documents which the Rules of Civil Procedure provide may only be served by mail.
Rule 74.18(3) of the Rules of Civil Procedure contemplates that an Application to Pass Accounts is to be served by regular lettermail, providing:
“The applicant shall serve the notice of application and a copy of a draft of the judgment sought on each person who has a contingent or vested interest in the estate by regular lettermail.” [emphasis added]
Although such a rule typically assists the Applicant in serving the Application to Pass Accounts in a streamlined and cost effective manner, as otherwise personal service of the Application to Pass Accounts would be required pursuant to rule 16.01 as an “originating process”, the rule does not contemplate what is to occur in the circumstance that service by regular lettermail is not possible (i.e. in a full work stoppage). In such circumstances, how can the Applicant ensure that the Application to Pass Accounts is properly served as required by the Rules of Civil Procedure?
From a common sense standpoint there are likely alternatives readily available to serve the Application materials other than by regular lettermail, including potentially by courier or by personal service. From a strict reading of rule 74.18(3) however, service of the Application to Pass Accounts by any means other than “regular lettermail” is not proper service, such that it is possible that a beneficiary may argue that they have not been properly served should you serve them by any other means. Should this occur, it is possible that an Order validating service and/or substituting service for alternative means under rule 16.04 may be required.
Thankfully at present the strike is only “rotating” in nature, such that we can continue to mail out documents such as Applications to Pass Accounts to be served in accordance with the Rules of Civil Procedure (subject to any potential daily interruptions should your community be striking on a particular day). Should circumstances change however, and there is a full work stoppage, it is possible Orders may have to be sought validating and/or substituting service for service in a manner other than by regular lettermail for those items such as Applications to Pass Accounts which the Rules provide may only be served by mail.
Thank you for reading.
As I was reading the Financial Post, I came across an interesting article entitled, What Will You Do With Your Estate? In this article, Jonathan Chevreau explains that there are two schools of thought when a parent is deciding how to plan their estate.
On the one hand, some parents believe in transferring the wealth that they have accumulated during their lifetime to their children. On the other hand, some parents believe in “dying broke”. Although it sounds harsh, parents from the second school of thought, often follow the belief that their “kids should stand on their own feet.”
Most of us will fall in between the two extremes; however in his article, Mr. Chevreau reviews the strategies associated with both schools of thought.
Parents who wish to maximize their estate often don’t like to leave their kids with any debts. Parents from this camp are more likely to “Commute the value of their death benefit pensions in order to maximize RRSP assets … wipe out any lien’s on their residence … give an inter-vivos gift to their children and pre-pay their funeral.”
In the other camp, parents leaning towards the “die broke” philosophy often try to maximize their assets during their lifetime by using three main techniques: pensions, annuities and reverse mortgages. The nature of all three is to maximize income for the parent and their spouse during their lifetime, while leaving little or nothing for their children.
Wherever along the spectrum you fall, it bears discussing your estate plan with your spouse, kids and a good financial planner or estate planning expert.
Rick Bickhram – Click here for more information on Rick Bickhram.
Listen to Developments in Will Changes.
This week on Hull on Estates, Ian and Suzana discuss developments in will changes. They reference cases from Key Developments in Estates and Trusts Law in Ontario ed. 2008.