Tag: toronto

30 Sep

What can you do if you Suspect that a Loved One is no longer Capable?

Rebecca Rauws Capacity Tags: , , , , , , , , , , 0 Comments

Something that no one ever wants to deal with, but which is sometimes an unfortunate reality, is the incapacity of a loved one. You may notice that your spouse or parent is not themselves, or has acted in a way that causes you some concern.

If the person has a power of attorney for property and a power of attorney for personal care, the attorney(s) named in those powers of attorney may need to step in and begin to manage the person’s finances and care. The terms of the power of attorney may set out when the attorney can begin acting. For instance, some powers of attorney for property are effective immediately upon execution by the grantor, and continue to be in effect in the event of any subsequent incapacity.

The power of attorney may also outline what kind of confirmation of the grantor’s incapacity is necessary before the attorney may begin acting on the grantor’s behalf. If the grantor is willing to cooperate in whatever capacity assessment is required, this step may be simple and straightforward to complete. However, as is often the case, the person may resist acknowledging any decline in their capacity or cognition, and may not wish to have their capacity assessed.

Pursuant to s. 78(1) of the Substitute Decisions Act, 1992 (the “SDA”), a person must consent to having their capacity assessed. If they refuse to be assessed, the assessor is precluded from performing an assessment.

If a person refuses to be assessed, it is possible to seek a court order for an assessment, pursuant to s. 79(1) of the SDA. In order to do so, the following will be required:

a) the person’s capacity must be in issue in a proceeding under the SDA; and

b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable.

As a capacity assessment can be an intrusive process, the court takes requests to order them very seriously, and will often not be quick to order one. As discussed in Abrams v Abrams, [2008] O.J. No. 5207, some of the factors that the court will consider in making a determination in this regard include the following:

i) the purpose of the SDA, being to protect the vulnerable;

ii) the nature and circumstances of the proceedings in which the issue is raised;

iii) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;

iv) whether the assessment will be necessary in order to decide the issue before the court;

v) whether any harm will be done if an assessment does not take place; and

vi) the wishes of the person sought to be examined, taking into account his or her capacity.

Thanks for reading,

Rebecca Rauws

 

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28 Sep

Could Robot Pets Help with Loneliness in Elderly People?

Rebecca Rauws Elder Law Tags: , , , , , , , , , , , , 0 Comments

An issue that we see all too often with older adults, and which was exacerbated throughout the pandemic lockdowns, is that they can be lonely and isolated. With spouses who pass away, and children and grandchildren having their own lives, our elders may end up spending a great deal of time on their own. They may feel that they don’t want to bother their family members by calling, or asking them to visit.

According to this New Yorker article from earlier this year, loneliness and isolation can have a serious impact on an elderly person. Without anyone to call, or anyone to check on them, an older adult could remain on the ground for a long time after a fall, or be living in unsafe or unhygienic conditions. From a medical perspective, loneliness is thought to result in a heightened inflammatory response, which can increase the risk of a number of conditions including dementia, depression, high blood pressure, and stroke. All this to say that loneliness is a serious problem. And it has the potential to impact many people; the article notes that nearly thirty per cent of Americans over 65 years of age live by themselves, and that forty-three per cent of Americans over 60 years of age identify as lonely.

An interesting project that has popped up in recent years involves distributing robot pets to elderly people. A study published in 2020 found that elderly users who interacted with the robotic pets for sixty days reported greater optimism and sense of purpose, and were sometimes less lonely.

Anecdotal comments from some older adults who were given a robot pet indicate that even though they know the pet isn’t real, at times it can feel real. One owner noted that he had put out water for his cat, even though he knew she wouldn’t drink it, but that he likes to “kid around with her” about this. Frequently, owners of the pets like and interact with their pet so much that the batteries run out.

Some critics are concerned that it may be indecent for us to offer robotic company as an alternative to human company. However, the difficulty seems to be that there is a lack of human company.

Although this approach may not be for everyone, that it has had some success with a number of users so far is, in my view, a positive thing. If younger generations can rely on technological innovations to improve our everyday lives, the same should apply to older adults. The robotic pets are not intended to replace human companionship, but if it helps alleviate loneliness, it seems to me to be worth trying.

Thanks for reading,

Rebecca Rauws

 

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27 Sep

The Power of Testamentary Charitable Giving

Rebecca Rauws Charities Tags: , , , , , , , , , , , , , 0 Comments

This month marks the beginning of the Will Power campaign, led by the CAGP Foundation and the Canadian Association of Gift Planners.

Will Power is designed to show Canadians the power they have to make a difference with their Wills by leaving charitable gifts.

Many Canadians feel that if they leave a charitable gift in their Will, it will take away from gifts and support for their loved ones, who they also wish to benefit as part of their estate plan. But according to CAGP and the CAGP Foundation, leaving even 1% of one’s estate to charity can still “have an enormous impact on your cause, while still leaving 99% of your estate to your family…You don’t have to choose between your loved ones and the causes you care about when planning your Will.” The Will Power website has a helpful legacy calculator, which can help with visualizing what it means to leave a gift to charity, and still be in a position to benefit your loved ones.

Some people may think that they need to have a very large estate to be able to make a meaningful gift to charity. But regardless of the size of the gift, it can still make a difference. Will Power estimates that if only 3.5% more ordinary Canadians included a gift in their Will in the coming decade, the result would be $40 billion in gifts to charitable causes.

Another aspect of charitable giving to consider is the tax benefit of doing so. Depending on the nature of your assets at the time of your passing, and any estate planning steps, there could be significant taxes payable on death. Making a testamentary gift to a cause that is important to you could result in a reduction of the amount of taxes to be paid.

For more information, and helpful links, you can check out this press release from Will Power.

Thanks for reading,

Rebecca Rauws

 

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02 Sep

Limited grants as a stop-gap when probate is delayed

Stuart Clark Executors and Trustees Tags: , , , , , , , , , , 0 Comments

An unfortunate reality with the administration of estates is that probate can take a long time to be issued. It is not uncommon for it to take six to eight months, if not longer, after the application is filed before the Certificate of Appointment is issued. As many institutions such as banks require a Certificate of Appointment before they will grant access to estate funds, and the Estate Trustee is generally unable to deal with any real estate owned by the estate until the Certificate of Appointment has been issued, this delay can often result in complications with the initial administration of the estate. These complications can be particularly acute when there is an urgent need for the Estate Trustee to complete a particular task which requires probate, such as the potential urgent need to deal with certain real estate or assets on behalf of the estate.

In the past when faced with the urgent need for probate a common solution would be to bring a Motion seeking an order directing the Registrar to expedite the issuance of the Certificate of Appointment. As anyone who has recently attended an event at which an estates court judge has spoken can attest however this option generally appears no longer to be available, as the message being conveyed is the court is generally not prepared to order the Registrar to expedite the process absent extraordinary circumstances. Such a reluctance appears in part based on the court not wanting to place the Registrar in a position of being in contempt of court if they are unable to comply with the expedition order, as well as administrative issues the expedition orders were causing at the estate office.

The general inability to expedite the issuance of probate absent limited circumstances has raised a number of questions about what, if anything, an applicant Estate Trustee can do if faced with the urgent need for probate and their situation does not meet one of the limited circumstances the court has indicated they will consider expediting probate. Would the applicant Estate Trustee simply have to wait however long the probate application takes in the normal course, or are there other options absent expediting probate that may be available to them?

One potential solution is the use of a “limited grant” under section 29(3) of the Estates Act as a stop-gap, with the applicant Estate Trustee being provided with the authority to complete the particular urgent task under the limited grant until such a time as probate is issued at which time the limited grant would expire. As the limited grant should not require the active involvement of the Registrar, with the individual’s authority to complete the task being derived from the order itself, many of the concerns raised in relation to ordering the Registrar to expedite probate do not appear present with the limited grant.

The limited grant is technically a separate appointment from Estate Trustee, such that the order providing for the limited grant should likely contemplate items such as what is to happen to any assets subject to the limited grant upon the limited grant expiring (i.e. are they to be returned to the Estate Trustee), as well as whether an accounting for the limited grant and/or any compensation to the appointee is payable now or if it is to be deferred to any accounting for the main estate.

Thank you for reading.

Stuart Clark

31 Aug

Can you commence a claim against an estate that doesn’t have an Estate Trustee?

Stuart Clark Estate Litigation Tags: , , , , , , 0 Comments

Generally speaking an Estate Trustee has the ability to “step into the shoes” of the deceased individual as if they were the deceased individual. I have previously blogged, for example, about the Estate Trustee’s general ability to waive any duty of confidentiality owed to the deceased individual after death. This ability to represent the deceased individual generally extends to any legal proceedings commenced against the deceased individual’s estate, with it typically falling to the Estate Trustee to represent the deceased individual or their estate in the claim. But what happens when there is no Estate Trustee? Can a legal proceeding be commenced against a deceased individual when there is no Estate Trustee, and, if so, who represents the estate in such a claim?

Rule 9.02 of the Rules of Civil Procedure provides the general framework by which a claim can be commenced against the estate a deceased individual where there is no Estate Trustee, providing for the appointment of a “litigation administrator”. Specifically, rule 9.02(1) provides:

“Where it is sought to commence or continue a proceeding against the estate of a deceased person who has no executor or administrator, the court on motion may appoint a litigation administrator to represent the estate for the purposes of the proceeding”

The “litigation administrator” is typically a neutral third party whose sole role is to represent the estate in the proceeding. The authority of the litigation administrator does not extend beyond the representation of the estate in the legal proceeding, with the litigation administrator, for example, not having the authority to make distributions to the beneficiaries or otherwise administer the estate (i.e. pay debts or liabilities). To the extent it is desired to complete such tasks someone will need to be appointed as Estate Trustee or otherwise be provided with the authority by way of court order through something like a limited grant under section 29(3) of the Estates Act.

Thank you for reading.

Stuart Clark

30 Aug

Dependants and Insolvent Estates

Stuart Clark Support After Death Tags: , , , , , , , , , 0 Comments

We have previously blogged at length about the broad discretionary powers of the court to award support for dependants after death under Part V of the Succession Law Reform Act. Although support applications are most often commenced in circumstances where the insufficient support was caused directly by the estate planning of the deceased individual (or lack thereof), a support application can also be a useful tool where, as a result of the deceased’s debts and liabilities at the time of death, the deceased’s estate is insolvent such that the bequests in the Will may not be carried out.

Section 2(3) of Ontario’s Creditors’ Relief Act provides:

“A support or maintenance order has the following priority over other judgment debts, other than debts owing to the Crown in right of Canada, regardless of when an enforcement process is issued or served:

  1. If the maintenance or support order requires periodic payments, the order has priority to the extent of all arrears owing under the order at the time of seizure or attachment.
  2. If the support or maintenance order requires the payment of a lump sum, the order has priority to the extent of any portion of the lump sum that has not been paid.”

Simply put, the payment of a support order, including those under Part V of the Succession Law Reform Act, is paid in priority to all other judgment debts other than those owed to the “Crown in right of Canada” (i.e. taxes).

Generally speaking a deceased’s debts and liabilities are paid in priority to all distributions to beneficiaries, such that where these liabilities are significant there could be little to no funds remaining to pay the beneficiaries after the debts are paid. As a result of the priority of support orders over other judgment debts, it could be advantageous for a surviving spouse or next of kin when faced with an insolvent estate to commence an Application for support as a dependant. If the individual is confirmed as a dependant the payment of their support Order would take priority over any other judgment debts, potentially resulting in a situation where the dependant receives a benefit from the estate where such a benefit otherwise would not materialize had they waited for their bequest under the Will or intestacy.

Thank you for reading.

Stuart Clark

15 Jul

What kind of Evidence is needed in an Uncontested Guardianship Application?

Rebecca Rauws Guardianship Tags: , , , , , , , , , , 0 Comments

Guardianship litigation can be messy and upsetting to those involved in such proceedings, particularly when there are multiple family members fighting over who should act as guardian.

It is also possible for a guardianship application to be brought on an uncontested basis, meaning that no one is opposing the appointment of the proposed guardian. That being said, given that the appointment of a guardian is a serious restriction on a person’s liberty, the courts do not take guardianship appointments lightly, and still have strict requirements for evidence, even in uncontested guardianships.

Pursuant to s. 22(1) of the Substitute Decisions Act, 1992 (the “SDA”), and s. 55(1) of the SDA, the court may appoint a guardian of property and/or personal care for a person who is incapable of managing property and/or personal care if, as a result of that incapacity it is necessary for decisions to be made on his or her behalf by a person authorized to do so.

Least Restrictive Course of Action

Sections 22(3) and 55(2) of the SDA provide an important restriction on the court’s ability to appoint a guardian, requiring that a court not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that is less restrictive of the person’s decision-making rights than the appointment of a guardian.

In particular, if a person has made a power of attorney for property or personal care naming the individual(s) who they wish to make decisions on their behalf in the event of their incapacity, the court may be reluctant to appoint a guardian and override the person’s own choice of a substitute decision-maker. Accordingly, a guardianship application should include evidence as to whether the alleged incapable person has executed powers of attorney, and what efforts the applicant has made to determine whether powers of attorney exist.

It is also important to remember that even if a person is incapable of managing their property or personal care, he or she may still be capable of making a power of attorney in this regard. Allowing a person to name their own substitute decision maker will of course be less restrictive of his or her decision-making rights than the court imposing a guardian on him or her. Accordingly, a person’s capacity to make powers of attorney should always be considered in the context of a guardianship application, and evidence in this regard should be provided to the court.

Furthermore, if a person is capable of naming his or her own attorney by executing powers of attorney, it may be possible to avoid the costs of a guardianship application, which can be significant.

A Finding of Incapacity is Required

There is also a statutory requirement in s. 58(1) of the SDA that the court make a finding of incapacity in order to appoint a guardian. The court will require evidence in support of a finding of incapacity. Most frequently, this will take the form of a capacity assessment by a trained capacity assessor.

Sometimes applicants are hesitant to obtain a capacity assessment of an alleged incapable person, either due to the cost of the assessment, fear of upsetting the person, or some other reason. While these concerns are understandable, it is important that the court be provided with evidence sufficient to allow it to make the finding of incapacity. Otherwise, it will not be able to appoint a guardian. The cost of the capacity assessment will almost certainly be less than the cost of bringing a guardianship application, only to be unsuccessful when the court is unwilling to appoint a guardian without adequate evidence to satisfy it as to incapacity.

A capacity assessment is also useful as it may reveal that an alleged incapable person does have some level of capacity. As noted above, a person may be capable of executing a power of attorney, even if he or she is incapable of managing his or her own property or personal care. In that case, a guardianship application may be able to be avoided altogether.

Thanks for reading,

Rebecca Rauws

 

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13 Jul

British Columbia & Wills Variation: Who is Entitled to Dependant’s Support?

Rebecca Rauws Support After Death Tags: , , , , , , , , , , , , , , 0 Comments

In Ontario, the Succession Law Reform Act, R.S.O. 1990, c. S.26 allows a deceased person’s dependants, to whom the deceased has not made adequate provision for his or her proper support, to seek an order for support to be made to the dependant out of the deceased’s estate. In order to qualify as a “dependant”, a person must be a spouse, parent, child, or sibling of the deceased “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” There are therefore several conditions for a person to be able to obtain an order for dependant’s support:

  1. they must have one of the required relationships with the deceased (spouse, parent, child, or sibling);
  2. the deceased must have been providing them with support, or have a legal obligation to provide support, immediately before the deceased’s death; and
  3. any provision made for the person in the deceased’s Will (if any) must be inadequate.

British Columbia deals with dependant’s support differently than Ontario. In B.C.’s Wills, Estates and Succession Act, S.B.C. 2009, c 13, s. 60 provides that if a testator does not make adequate provision for the proper maintenance and support of his or her spouse or children in his or her Will, the court may order the provision that it thinks adequate, just, and equitable in the circumstances for the spouse or children out of the testator’s estate. Unlike the Ontario law, it is not a requirement that the testator had been providing support to his or her spouse or children prior to death. This difference is significant because in Ontario, independent adult children are typically not able to obtain dependant’s relief as they do not meet the requirements of a “dependant”. In BC case law, there is also a greater emphasis on a testator’s moral duty to his or her dependant’s than there is in Ontario.

The BC Supreme Court decision in Jung v Poole Estate, 2021 BCSC 623 provides an example of how the difference in the law in Ontario vs. B.C. can result in vastly different outcomes.  In Jung v Poole, the testator was survived by his two twin daughters, Courtney and Chelsea. Courtney and Chelsea’s mother had been dating the testator when she became pregnant. The testator suggested an abortion but the mother chose to keep the twins, and raised them as a single mother without any involvement or financial assistance from the testator. The mother died when the twins were 4 years old, and a custody battle ensued between the testator and the twins’ grandmother on their mother’s side, on the one hand, and a couple who were friends of the mother’s and whom the mother had named in her Will to be the twins’ joint guardians, on the other hand. The testator expressed a desire to be involved in raising the twins at that time.

Ultimately, the court determined that the couple chosen by the mother to be the twins’ guardians would become the twins’ custodial parents. The testator and the grandmother were allowed specific and generous parenting time, access, and consultations regarding major areas of the twins’ lives. However, the testator never exercised any of these rights and, with the exception of one attempt to contact the twins the year after the custody decision, ceased to have any involvement in their lives.

The testator executed two Wills after the custody decision, both of which disinherited the twins. In one Will the testator referred to the twins as his illegitimate children, and in the other he explained that one of his reasons for disinheriting them was that they had not made efforts to contact him.

As stated by the court, if the court concludes that the testator owed a moral obligation to the twins and did not make adequate provision for their proper maintenance and support, the court has the authority to vary the testator’s Will to make the provision for them that, in its view, is adequate, just and equitable in the circumstances.

The court did ultimately conclude that the testator abandoned the twins from the outset, as well as after the custody battle, and had a strong moral obligation to them, which he failed to meet during his lifetime. As a result, the court varied the testator’s Will to provide 35% to each of Courtney and Chelsea, and 15% to each of the two friends of the testator who had been named as estate trustees and sole beneficiaries of his estate. The court was of the view that the testator had blamed the twins for the decision in the custody battle, even though that was beyond the twins’ control, and also blamed them for the lack of relationship, notwithstanding what the court found were valid and rational reasons given by the twins in this regard (including that they were hurt that the testator had wanted their mother to abort them, and the testator’s actions during their lives made it clear to them that he did not want them in his life).

It is unlikely that the same decision would have been reached had this situation occurred in Ontario. The fact that the twins were independent adults, and that the testator had not been providing them with support, nor under a legal obligation to provide them with support, immediately before his death, would likely have resulted in a decision that the twins were not entitled to support, regardless of the unfortunate circumstances between the twins and the testator.

Thanks for reading,

Rebecca Rauws

 

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12 Jul

When is a Matter Truly Urgent?

Rebecca Rauws Litigation Tags: , , , , , , , , , , , 0 Comments

During the COVID-19 pandemic, our Courts have unfortunately, but necessarily, been impacted. As a result, the Courts have, at times, had to restrict the matters that may be heard to only those that are urgent, as defined by the Notices to the Profession that have been published by the Court. For instance, the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media lists a number of matters that are to be considered urgent. With respect to civil and commercial list matters, this includes “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.” Discretion is also granted to allow the Court to decline to hear any particular matter described in the Notice as being urgent, if appropriate, or to allow a hearing that the Court deems necessary and appropriate to be heard on an urgent basis.

Despite the Notices from the Court, there may still be confusion amongst parties as to whether their matter qualifies as “urgent” or not. As The Honourable Justice Myers stated in the recent decision of Nicholas v. Ogniewicz, 2021 ONSC 4442, “Self-induced urgency is not ‘urgent’.”

In Nicholas v Ogniewicz, the issue was that there had been an agreement of purchase and sale with respect to real property, which provided that the purchaser would submit requisitions two weeks prior to closing. Unfortunately, the requisitions submitted by the purchaser were extensive, and as noted in the decision, it was apparent that several of the requisitions could not be physically accomplished before the closing date.

A week after the requisitions were received, the vendor asked for an urgent hearing date, pursuant to the Notice to Profession – Toronto, Toronto Expansion Protocol for Court Hearings during Covid-19 Pandemic, to resolve the validity of the requisitions.

Justice Myers described the current state of the civil list in Toronto as follows:

The civil list in Toronto is building a backlog of motion and application hearings. It is currently suffering unacceptably long timeouts for civil motions and applications due to the effects of the pandemic and a lack of resources. Truly urgent matters are being heard on an urgent basis. But no judge is sitting around waiting for them to come in. They are heard at a cost to other cases waiting in the queue or to case conferences that the judge may have to defer, or to parties waiting for the release of the judge’s reserved decisions that the judge was writing in her non-sitting time.

In the court’s view, in this particular case the time-sensitivity present was self-induced by both sides. It was also noted that no one was at risk of physical injury, the property was not about to suffer irremediable waste, no confidential information was at risk of disclosure or misuse, and no business was at risk of imminent failure or irreparable harm unless misconduct is urgently prevented. Ultimately, the court determined that the matter was not urgent as set out in the Notice to the Profession, and there was no basis for it to jump the queue.

Although there may be a light at the end of the pandemic tunnel, we must all still be mindful of the long-lasting consequences, including the heavy backlog that continues to exist, and will likely continue to exist for some time, in our courts.

Thanks for reading,

Rebecca Rauws

 

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17 Jun

Who gets to be Estate Trustee when no one is appointed?

Stuart Clark Executors and Trustees Tags: , , , , , , , , 0 Comments

When there is a Last Will and Testament the question of who is going to act as Estate Trustee is usually fairly straightforward, with the Will typically naming an individual to such a role. In the event the individual who is originally named as Estate Trustee is unable or unwilling to act, the Will often provides for an alternate individual to be appointed. But what happens when the Will does not name an Estate Trustee or an individual dies intestate? Who gets to be the Estate Trustee under such a circumstance?

The order of priority for who gets to act as Estate Trustee when there is no one appointed is governed by section 29(1) of the Estates Act, which provides:

“Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,

(a)  the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;

(b)  the next of kin of the deceased; or

(c)  the person mentioned in clause (a) and the next of kin,

as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit.”

Although the court retains the power to select amongst this group as it “thinks fit”, generally speaking the individual entitled to be appointed as Estate Trustee is the Deceased’s spouse followed by their next of kin (or some combination of these individuals). Section 29(3) of the Estates Act contemplates that the right of these individuals to be appointed as Estate Trustee is not absolute, with the court having the ability to select a different person if it thinks fit. The position of a majority of the beneficiaries can also be taken into account in selecting the individual under section 29(2).

Thank you for reading.

Stuart Clark

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