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.
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On November 14, 2011, Attorney General Shirley Bond introduced the Family Law Act (Bill 16) in the British Columbia Legislature for first reading. The bill repeals the Family Relations Act, which was introduced in 1978, and replaces it with the Family Law Act.
Assuming the bill becomes law, which seems a near inevitability given the government’s comfortable majority at present and the support expressed by the opposition, the Family Law Act will significantly reform the province’s laws relating to divorce, separation and child custody.
Among the many changes introduced by the new law, the Family Law Act aims to do the following:
- promote alternative dispute resolution in the family context to resolve disputes out of court;
- establish a comprehensive scheme to determine a child’s legal parents, including in situations where technology has been used to assist reproduction;
- ensure that the best interests of the child are the only consideration when resolving parenting disputes;
- emphasize responsibilities to children and promote cooperation by eliminating divisive terms, replacing the traditional terminology of "custody" and "access" with "guardianship", "parental responsibilities" and "contact with a child";
- allow planning for a parent’s incapacity, whereby a parent (“guardian”) may appoint a stand-by guardian to act in the event of his or her incapacity, or a testamentary guardian to act in the event of his or her death;
- extend rights and duties respecting property division to unmarried persons who qualify as spouses;
- align spousal support more closely with the Divorce Act (Canada) and eliminate parental support;
- allow orders and agreements for child support and spousal support to be made binding on a payor’s estate;
- recognize “family debts” are debts incurred during the relationship, or incurred to maintain family property after separation, and are presumptively shared equally between spouses; and
- create a new protection order for cases involving family violence, with any breach of the order treated as a criminal offence.
The Family Law Act could be passed into law as early as within the next two weeks, but is expected to take between 12 to 18 months to take effect. Given the interplay of the issues addressed by family lawyers and estate lawyers, our British Columbia colleagues will no doubt closely follow the integration of the new law into the province’s legal system.
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Saman M. Jaffery
I regularly tutor students who are preparing to write the Estate and Trust section of the Solicitor’s exam for the Law Society. One of the more common questions that my students ask is for help in explaining two concepts: lapse and the “anti-lapse provision”.
The common definition of a lapsed gift, is a gift that has failed because it is incapable of taking effect. Two common reasons for a gift to be incapable of taking effect is where the beneficiary predeceases the testator or the gift is disclaimed by the beneficiary.
Pursuant to Section 23 of the Succession Law Reform Act, unless a contrary intention appears in the Deceased’s Will, if a gift is incapable of taking effect, the failed gift will fall into the residue of the testator’s estate and distributed accordingly.
Section 31 of the Succession Law Reform Act is commonly referred to as the anti-lapse provision. The anti-lapse provision saves a failed gift if the beneficiary falls into the class of beneficiaries set-out under this provision and that beneficiary leaves a spouse or issue who survived the testator. If these conditions are met, the gift will not fall into the residue, however it will take effect as if it had been made directly to the spouse or issue of predeceased beneficiary.
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Rick Bickhram – Click here for more information on Rick Bickhram.
The concept of reviving a revoked will seems clear enough. But what is the difference between a revival and a republication, and why does it matter?
Revival means reactivating a revoked will. Note that section 19(1) of Ontario’s Succession Law Reform Act requires a revival to be in accordance with the provisions of Part I of the Act. So an oral declaration that a revoked will is valid does not suffice. A destroyed will cannot be revived, unless the reviving instrument contains a copy or the terms. On the other hand, at Common Law, a codicil referencing an existing will "republishes" that will, furnishing evidence of the testator’s considering his will as then existing. And because the Wills Act, 1837 did not abolish the doctrine of republication, the principle still operates. Both revived and republished wills are deemed executed on the revival or republication date.
An attempt to revive a will that was never actually revoked may have the result of republishing that will at the time of the attempted revival. However, attempting to republish a revoked will not revive a revoked will, unless the acts of republication also satisfy the requirements of a revival (which include the form requirements of the Succession Law Reform Act. Specific uses of the doctrine of republication are discussed in detail in Macdonell, Sheard and Hull on Probate Practice, 4th ed., Rodney Hull, Q.C. and Ian M. Hull (Carswell: Toronto, 1996), pp. 116-119.
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Christopher M.B. Graham – Click here for more information on Chris Graham.
Part V of Ontario’s Succession Law Reform Act ("SLRA") establishes a mechanism whereby qualifying dependants can claim support from the estate of a deceased. Section 72 of the SLRA is a deeming provision that includes certain non-estate assets as part of the estate for the purposes of calculating the value of the estate, and allows such assets to be charged ("clawed back") by a support Order made under section 63 of the SLRA.
The recent case of Simson v. De Bartolo 2009 CanLII 38493 (ON S.C.) interprets section 72(1) and applies Cummings v. Cummings 2004 CanLII 9339 (ON C.A.), the Court of Appeals decision holding that support awards are subject to moral considerations. One issue following Cummings has been whether moral considerations justify a support award in and of themselves, or whether moral considerations are merely relevant to quantum of support following a determination that a support award is appropriate.
The applicant in Simson v. De Bartolo was litigation guardian for her child, born out of wedlock to the deceased and the actual support claimant. When the applicant told the deceased’s wife about their relationship and the child, the deceased transferred these properties to his wife (from joint ownership) and made a will disinheriting the child. Later, the deceased died virtually penniless. At issue in a motion was whether properties transferred by the deceased to his wife 10 years prior to his death could be deemed part of the deceased’s estate under any enumerated grounds in section 72(1).
Justice Lemon held that these assets could not be "clawed back" under s. 72(1). Most particularly, a transfer of land to another party in the absence of an express written trust instrument does not fall within section 72(1)(e). Of course, the transfer may still be impressed with a trust, as Justice Lemon pointed out, and if such trust pulls the asset into the estate, the SLRA provides for protection of the dependant pursuant to section 67. Moral considerations were relevant in determining quantum of support, but not whether an asset forms part of the estate.
The facts in Simson v. De Bartolo appear to have precluded the court from addressing the Cummings question, at least in the motion being heard. However, section 72 has been clarified.
Enjoy your day,
Chris M.B. Graham – Click here for more information on Chris Graham.
Listen to Dependant Relief.
This week on Hull on Estates, Natalia Angelini and Craig Vander Zee discuss dependant relief and reference a variety of cases that utilized the Succession Law Reform Act.