Tag: Suzana Popovic-Montag

16 Mar

Protecting the Vulnerable Testator: Health Care Worker Bequests

Suzana Popovic-Montag Elder Law, Estate & Trust Tags: , , , , , , , , 0 Comments

According to the Ontario Human Rights Commission, approximately 60,000 of the 1.5 million older persons living in Ontario experience elder abuse. Of these reported cases, financial abuse is the most prevalent as it is the most common form of elder abuse in Canada.

As practitioners of elder law, we often see perpetrators who, sadly, are family members eager to get control of an aging parent’s finances. However, in other cases, the perpetrator is not a family member at all. Rather, he or she is an employee of a health care institution or a caregiver sent to provide in-home care.

Older persons in poor health are often isolated and vulnerable. This is particularly true with respect to those who live alone and are dependent on assistance from a health care worker, as well as those who reside in long term care facilities. Accordingly, many health care workers may find themselves in a position of power or influence over their charge. As a result, some Canadian provinces have enacted legislation that attempts to avoid the potential abuse of power that may emerge within these types of relationships.

AA87A01CA5

For instance, in British Columbia, the Wills, Estates and Succession Act provides at section 52:

In a proceeding, if a person claims that a will or any provision of it resulted from another person

(a) being in a position where the potential for dependence or domination of the will-maker was present, and (b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,

and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.

Accordingly, in relationships of dependence, an automatic presumption of undue influence is established and the burden of proof is shifted onto the person upholding the will. As undue influence cases are notoriously difficult to prove, this legislation can facilitate the process.

In Quebec, the legislature has gone even further. Art. 761 of the Civil Code of Quebec provides:

A legacy made to the owner, a director or an employee of a health or social services establishment who is neither the spouse nor a close relative of the testator is without effect if it was made while the testator was receiving care or services at the establishment. []

This restriction on testamentary freedom is viewed as a necessity given the need to protect vulnerable people.

In Ontario, there are no similar legislative provisions in the Succession Law Reform Act. However, the Courts have established the principle of suspicious circumstances which creates a presumption of undue influence when certain circumstances are present.

Thank you for reading.

Suzana Popovic-Montag

09 Mar

Polygamous Marriages and the SLRA

Suzana Popovic-Montag Common Law Spouses, General Interest, Uncategorized Tags: , , , , , , , , , 0 Comments

In Canada, polygamy is an indictable offence under the Criminal Code of Canada. Under section 293(1):

4PB04KUSBV“every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into

(i) any form of polygamy, or

(ii) any kind of conjugal union with more than one person at the same time,

whether or not it is by law recognized as a binding form of marriage, or

 (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”

According to this Canadian Department of Justice research report, polygamy can refer to “the simultaneous union of either a husband or wife to multiple spouses. As a general term, polygamy therefore includes the practices of bigamy, polyandry, and polygyny.”

Notwithstanding the prohibition against polygamy in Canada, family law and succession legislation in Ontario recognizes polygamous spouses under certain circumstances. For instance, the Succession Law Reform Act and the Family Law Act both provide at section 1(2):

“In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.”

In estate matters, this means that as long as the union originated in a jurisdiction that legally recognizes polygamous marriage, multiple spouses can be found to simultaneously share in the preferential share under intestacy or be able to claim as a spouse under the provisions for dependant’s relief.

With respect to the preferential share, this is not the first or last time that the definition of spouse was broadened to provide access to other groups of spouses. In 1977, access was granted to widows with children. The inclusion of polygamous spouses (where the union originated in a jurisdiction that permits polygamy) was introduced in 1990, and 2003 saw the recognition of same-sex couples.

On a similar note, there are cases where the deceased is found to have been legally married to one spouse while carrying on a common law relationship with another. Or, in other scenarios, the deceased may have been engaged in two simultaneous common law relationships immediately prior to death. These situations raise many complex issues, the latter of which can be read about in more detail in our previous blog post here.

Thank you for reading.

Suzana Popovic-Montag

02 Mar

Withdrawal from Parental Control and Dependant’s Relief

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

In Ontario, F181E30B40 (1)minors who are 16 years or older may choose to withdraw from parental control under section 65 of the Children’s Law Reform Act. This means that these minors have the ability to leave home prior to reaching the age of majority without obtaining the permission of their parents or the courts. However, this is not a decision that should be taken lightly as it can be accompanied by serious consequences.

Aside from practical concerns such as living arrangements and limited employment prospects for minors, withdrawing from parental control carries potential repercussions regarding entitlement to financial support. In short, a minor who has voluntarily withdrawn from parental control may inadvertently disentitle him or herself from receiving financial support.

This is an issue that is commonly raised within the context of child support. Section 31(2) of the Family Law Act provides that the obligation of a parent to support his or her child does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. The question that the courts have struggled with is whether the minor’s withdrawal is voluntary or not. In many cases, the minor did indeed make the decision; however, if the minor was driven to this decision as a result of difficult circumstances in the home, it is likely that the decision will be viewed as a necessity.

Withdrawal from parental control can similarly impact a minor’s ability to claim dependant’s support after the death of a parent. According to section 62(1)(q) of the Succession Law Reform Act,

62(1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,

[…]

(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control

Accordingly, withdrawal from parental control is one of a variety of factors that the court will look at in determining dependant’s relief claims (including the importance of moral claims which is discussed in more detail on our podcast here).

Thank you for reading.

Suzana Popovic-Montag

24 Feb

Indian Act Successions

Suzana Popovic-Montag Estate & Trust, Wills Tags: , , , 0 Comments

According to Statistics Canada, 1,400,685 persons in Canada identified themselves as Aboriginal in 2011, 21.5% of whom reside in Ontario. Indians who are considered to be “ordinarily resident” on a reserve or on Crown Land are subject to the provisions of the Indian Act which governs land use, healthcare, education, and successions, among many other issues. Indians who are not “ordinarily resident” on a reserve remain governed by the legislation of the province in which they reside. Accordingly, the Indian Act, combined with the Indian Estates Regulations, governs the wills and estates of many Indians in Canada. This can have a significant impact on real property bequests, dependant’s relief claims, and intestacy rules, particularly in cases where one or more beneficiaries do not meet the definition of an Indian.

The Indian Act mirrors the common law approach to successions to a certain degree but there are several important distinctions:

1- The Minister of Aboriginal Affairs and Northern Development Canada (the “Minister”) is given broad oversight and discretion in matters respecting the wills and estates of Indians pursuant to section 42 of the Indian Act.

2- The formal requirements for a will are less stringent under the Indian Act. Section 45 (2) provides that, “The Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death.”

Furthermore, section 15 of the Indian Estates Regulations states, “Any written instrument signed by an Indian may be accepted as a will by the Minister whether or not it conforms with the requirements of the laws of general application in force in any province at the time of the death of the Indian.”

3- Intestacy provisions under section 48 of the Indian Act provide for a different distribution then what is found under provincial legislation (in Ontario, the Succession Law Reform Act). Additionally, children who are adopted under customary Indian law as opposed to provincial adoption rules can stand to inherit on an intestacy provided a finding of adoption by custom is made.

4- Reserve land is subject to a vastly different system which can have significant consequences in bequests of property. According to section 50 of the Indian Act, “A person who is not entitled to reside on a reserve does not by devise or descent acquire a right to possession or occupation of land in that reserve.”

As a result, if a person who is not entitled to reside on a reserve is left a right of possession or occupation of reserve land, either by will or intestacy, that right is placed for sale by the superintendent to the highest bidder among persons who are entitled. The proceeds are then paid to the devisee or descendant. Any unsold lands revert to the band after a period of time, subject to compensation made to the devisee or descendant from the funds of the band.

5- There is no formal dependant’s relief provision under the Indian Act. However, recourse can be found under section 46 (1)(c) where the Minister may declare a will to be void in whole or in part if, “the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide”.

Thank you for reading.

Suzana Popovic-Montag

17 Feb

The Issue of Parental Recognition

Suzana Popovic-Montag Estate & Trust, General Interest Tags: , , , , , , , 0 Comments

On December 10, 2015, private member Bill 137 (also referred to as Cy and Ruby’s Act) passed its second reading at Queen’s Park. Bill 137 seeks to amend various statutes that deal with parental recognition, most notably, the Childrens Law Reform Act (“CLRA”).

As it currently stands in Ontario, same-sex parents who make use of third party genetic material to assist with their reproductive efforts or are involved in surrogacy arrangements, must navigate red-tape and incur legal costs to ensure that the non-biological parent becomes the parent of their child. Accordingly, the non-biological parent must go through the process of legally adopting the child after the birth in order to be recognized as the parent. Bill 137 would, among other things, allow for the parents to enter into a parentage agreement that would recognize the non-biological parent earlier on and without requiring adoption proceedings.

At least four other Canadian provinces have already adopted similar legislation to reflect the changing ways we recognize parentage. This includes Quebec, Manitoba, Alberta, and British Columbia. For instance, in Quebec, article 538 of the Civil Code of Quebec recognizes the concept of the “parental project” and provides the following:

538. A parental project involving assisted procreation exists from the moment a person alone decides or spouses by mutual consent decide, in order to have a child, to resort to the genetic material of a person who is not party to the parental project.

538.1. As in the case of filiation by blood, the filiation of a child born of assisted procreation is established by the act of birth. In the absence of an act of birth, uninterrupted possession of status is sufficient; the latter is established by an adequate combination of facts which indicate the relationship of filiation between the child, the woman who gave birth to the child and, where applicable, the other party to the parental project. This filiation creates the same rights and obligations as filiation by blood.

Furthermore, article 538.2 of the CCQ adds that the donor of the genetic material is not considered to be the child’s parent merely as a result of the contribution (with some exceptions), language that is similar to the proposed amendments under Bill 137.

In a recent article published on this topic, the consequences of the proposed Bill are explored from an estates perspective. The author notes that Bill 137 does not contemplate any parallel amendments to the Succession Law Reform Act (“SLRA”). The concern raised is that under the SLRA, intestate succession rights are bestowed upon the “issue” of the deceased. “Issue” is defined under section 1 as including “a descendant conceived before and born alive after the person’s death” which suggests that a genetic lineal relationship must be present.

In the event that changes are made to parental recognition under the CLRA, it is unclear what the effect would be on children born through the use of third party genetic material under the SLRA and, in particular, whether these children would meet the definition of “issue” under the SLRA.

Thank you for reading.

Suzana Popovic-Montag

 

10 Feb

What’s in a Name?

Suzana Popovic-Montag Estate & Trust, Estate Planning, Support After Death, Wills Tags: , , , , 0 Comments

In most common law jurisdictions, the devolution of an estate begins with the principle of testamentary freedom. That is, that a testator is free to dispose of his or her property in any way he or she sees fit. However, in practice, this is rarely the case. Testamentary freedom has many restrictions that significantly curtail a testator’s ability to freely dispose of his or her assets.

For instance, family law legislation provides certain rights to a surviving spouse which allow for an election to be made to receive an equalization of net family property rather than taking an  interest under the estate. Dependant’s relief legislation also steps in to provide relief to dependants who were not adequately provided for by the deceased’s estate. Furthermore, there are contractual arrangements, such as cohabitation agreements, as well as equitable claims in unjust enrichment, constructive trust, and quantum meruit, that may be available to further restrict the testator’s dispositions made in a will or under the laws of intestacy.

In contrast, in many civil law jurisdictions, there exists what appears to be a more rigid system of forced heirship. Forced heirship essentially starts with the premise that there are certain individuals to whom a testator has a moral and legal obligation to support after death, notably their descendants and spouse. Accordingly, it limits the ability to disinherit these protected heirs by setting out that a specific percentage of an estate’s value is to be reserved for their benefit. This amount can vary widely depending on the number of descendants as well as other variables such as whether any of them are disabled.

Provided that the will respects these percentages by making dispositions that provide at least the minimum required, there will be no issue of a claim against the estate. However, in circumstances where the testator has not met the minimum requirement, the protected heirs have the ability to make a claim against the estate enforcing their rights to the reserved portion.

It is important to note that a protected heir enforcing his or her forced heirship rights is not automatically an heir. He or she simply has a pecuniary claim against the estate which can be satisfied by the estate’s assets. In the event that the estate does not have sufficient assets, the protected heir can seek to enforce various clawback provisions. These vary by jurisdiction but may include inter vivos gifts made within a period of time prior to death or with the intention of subverting forced heirship rules, as well as the creation of any trusts for similar purposes.

There are similarities between forced heirship regimes and our own dependant’s relief legislation. For instance, section 72 of the Succession Law Reform Act (“SLRA”) provides for a similar clawback provision in order to ascertain the value of an estate in making an award for support. Forced heirship claims are also subject to strict limitation periods much like dependant’s relief and equalization claims. Moreover, forced heirship is not an automatic transfer of wealth upon death simply by virtue of being a descendant of the deceased. In many jurisdictions, the protected heirs have the ability to renounce these rights prior to death or may choose not to make a claim after death at all.

The main distinction is that in a dependant’s relief context, the claimant has the additional burden of proving that the testator owed them support, whereas under forced heirship, simply being a descendant can be sufficient. However, the common law courts have construed the test of whether a dependant was owed support under the SLRA quite broadly. Moreover, the definition of a dependant under the SLRA encompasses many more potential claimants then most definitions of a protective heir will permit.

Despite the fact that forced heirship starts from the opposite end of the spectrum of testamentary freedom, it reaches a similar end result. Where forced heirship applies a more rigid starting point and then gradually loosens its grip, testamentary freedom begins with an open ended proposition that is subsequently restricted. Regardless of the approach taken, both systems seek to address a shared concern of public order: the duty to provide for your dependants after death.

Thank you for reading.

Suzana Popovic-Montag

03 Feb

Alzheimer Awareness Month: #StillHere

Suzana Popovic-Montag Capacity, Elder Law, General Interest Tags: , , , , 0 Comments

As Alzheimer Awareness Month draws to a close, the message the Alzheimer Society of Canada intended to convey in the #StillHere campaign is clear: A diagnosis of dementia does not necessarily mean that an individual is no longer capable of functioning in their daily life.

According to the Alzheimer Society, dementia is often misunderstood. As a result, there can be many stigmas attached to a diagnosis that can impact a person’s ability to effectively manage the disease. For instance, in a survey conducted where participants were asked whether a person living with dementia can continue to live well, half of the respondents answered that they believed that they could not. It is these types of misconceptions and negative attitudes towards dementia that the #StillHere campaign set out to change.

Challenging these perceptions is not always easy. The #StillHere campaign has provided an excellent start with educational videos and stories from persons living with dementia in an effort to encourage the public to test their assumptions. As the Alzheimer Society notes, dementia exists on a spectrum and people with dementia can continue to engage with society in meaningful ways.

In the context of estate litigation, it is quite common to witness the effect that these preconceptions can have. For instance, a will is not automatically invalid as a result of the testator having been diagnosed with dementia prior to its execution. The test for testamentary capacity must be applied and in many cases, it can be found that despite such a diagnosis, the testator was still capable of meeting this standard.

The same can be said with respect to Powers of Attorney for Personal Care. A diagnosis of dementia does not automatically assume that the individual is incapable and that the attorney can now make personal care decisions on their behalf. The diagnosed individual must first be found to be mentally incapable pursuant to s. 45 of the Substitute Decisions Act; a finding that is not necessarily synonymous with a diagnosis of dementia.

Despite legitimate challenges associated with mental impairment, it is important to recognize that a diagnosis of dementia does not immediately suggest the loss of individuality or identity. There is no doubt that dementia is progressive and can eventually lead to severe cognitive impairments; however, as the Alzheimer Society so aptly notes in their campaign, “Life doesn’t end when Alzheimer’s begins.”

Thank you for reading.

Suzana Popovic-Montag

27 Jan

Class Action Certification to Proceed for Crown Wards of Ontario

Suzana Popovic-Montag Guardianship Tags: , , , , 0 Comments

For thousands of children across Ontario, the Province is their legal guardian. These children are referred to as Crown Wards under the Child and Family Services Act. A Crown Wardship order will typically be made by the courts if it is found that it is in the child’s best interests that he or she no longer resides with his or her biological parents and where placing the child with another family member is not an option. In the event that a Crown Wardship order is made, the Province becomes the child’s legal guardian with all of the rights and responsibilities that this entails.

Many of these children are often removed from the care of their families as a result of being in an abusive environment. In a Class Action being brought against the government of Ontario, it is further alleged that once these children were made Crown Wards, that many continued to be victimized while in the system, including being subjected to physical, emotional, and sexual abuse.

The Class Action, which encompasses all children who were Crown Wards at any time from January 1, 1966, is seeking justice for what is viewed as the government of Ontario’s failure to protect their rights to claim for the abuse they suffered both prior to becoming Crown Wards and while under the Province’s care. Specifically, it is being claimed that as a result of the Province’s inaction, limitation periods have passed and evidence has disappeared, affecting their ability to seek damages and compensation which is in breach of their fiduciary duties.

Despite arguments by the Province that it does not owe a duty of care to the Crown Wards, the Superior Court of Ontario ruled last week that the Class Action may proceed.  The Honourable Mr. Justice  Fregeau dismissed the Province’s attempt to appeal the decision of the Superior Court which had granted the motion for an order that the first part of the test for certification be granted.

As the Plaintiffs continue on with the next steps in their action, it remains to be seen whether the courts will ultimately find that the Province did, in fact, owe a duty of care as legal guardian to the Crown Wards and whether any inaction in protecting their rights will be interpreted as a breach of fiduciary duty.

Thank you for reading.

Suzana Popovic-Montag

20 Jan

Cross-Border Successions and Reviewing your Foreign Will

Suzana Popovic-Montag Estate & Trust, Estate Planning, Wills Tags: , , , , , 0 Comments

Statistics show that close to 450,000 cross-border successions take place each and every year in the European Union (“EU”). These successions are estimated to represent a value of more than EUR 120 billion. However, due to complex cross-border succession laws and disputes as to which law is to govern the succession, time and money is often wasted trying to regulate conflict of laws issues.

As a result, on July 4, 2012, European Union Regulation 650/2012, commonly referred to as Brussels IV or the EU Succession Regulation, was passed. Although the regulation was passed in 2012, it only applies to deaths that occurred on or after August 17, 2015. As such, its application is still relatively recent.

The EU Succession Regulation can have a significant impact on Canadians with foreign wills that deal with assets held in an EU member state (except Denmark and with respect to the UK and Ireland, only if they opt in).  Accordingly, it is important to understand the ramifications of this regulation and consider whether a review of your foreign will may be necessary as a result.

The main effect of the EU Succession Regulation is to unify or harmonize the succession laws of the EU member states. The regulation states that the default rule will be that the law of the state in which the deceased was habitually resident is the law that will apply to the devolution of his or her estate. However, in cases where it can be shown that the deceased was “manifestly more closely connected” with another state, the law of this state will apply instead.

Of particular significance is that the rules regarding which law will apply can now be thwarted by an express election made in the will. This election must state that it shall be the law of the deceased’s nationality that will apply instead. In cases where the testator has more than one nationality, he or she may choose which is to be used for the purposes of this provision.

This regulation is intended to provide not only more certainty with respect to the laws which will govern a succession but also to allow for the testator to have more control over the process. It is important to bear in mind that most civil law jurisdictions in Europe still have forced heirship regimes. Accordingly, many testators in Europe or Canadians with foreign assets may wish to avoid having this system imposed upon them. Furthermore, dependant’s relief legislation can vary extensively between each state and it is not difficult to imagine why a testator may choose to circumvent a nation with a more stringent application of this type of legislation.

As the practical effects are just now starting to emerge, there is still some uncertainty as to how effective the changes will be. For instance, there is likely to be some discussion with respect to what “manifestly more closely connected” means and it remains to be seen whether a test will be developed to determine it. In the meantime, those with foreign assets may wish to review their foreign wills and consider what the effects of these changes may be in their situation. If need be, they may also want to consider making an election pursuant to the regulation.

Thank you for reading.

Suzana Popovic-Montag

06 Jan

Bill 122 Comes into Force

Suzana Popovic-Montag Capacity, General Interest, Health / Medical Tags: , , , , 0 Comments

This past fall, the Minister of Health and Long-Term Care introduced Bill 122, The Mental Health Statute Amendment Act, to the Ontario legislature. It received Royal Assent on December 10, 2015 and officially came into force on December 21, 2015.

By way of background, the bill’s purpose was primarily to make changes to the Mental Health Act  (“MHA”) in order to provide the Consent and Capacity Board with new powers with respect to the criteria under which a patient can be held involuntarily in a psychiatric facility as well as to address the length of time under which a patient can be involuntarily held.

The bill emerged as a response to the Ontario Court of Appeal’s 2014 decision in P.S v Ontario in which the court declared provisions in the MHA which allowed indefinite renewals of fourth certificates of involuntary admission, to be unconstitutional. The legislature was provided with one year to amend the MHA in light of the decision.

A brief summary of some of the most significant changes is as follows:

1- The new class of “certificate of continuation” is created.

Under a certificate of continuation, involuntary patients can only be detained for three additional months under a first and subsequent certificate of continuation.

The process for the first three certificates of renewal remains the same. This means that involuntary patients can still be detained for one additional month under a first certificate of renewal, two additional months under a second certificate of renewal, and three additional months under a third certificate of renewal. However, the process now ends after the third certificate of renewal. At this point, the detention can only continue under the new certificate of continuation.

2- The Consent and Capacity Board is granted new order-making powers that can be exercised at hearings with respect to the new class of certificates of continuation (for patients who have been detained for periods longer than six months).

3- The officer in charge of the psychiatric facility is now to be made a party to any hearing where a certificate of continuation is at issue.

There are, of course, further changes as a result of Bill 122 which can be read about in more detail here. These include the transition provisions which will undoubtedly be an important part of the implementation as this new legislation goes into effect.

Thank you for reading.

Suzana Popovic-Montag

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