Hot Topics: My Common Law Spouse Died – Now What?








My Common Law Spouse Died – Now What?

By: Kim Gale and Gabriela Caracas

The concept of marriage has evolved significantly throughout existing generations. Fewer people now feel that commitment must be showcased through those two simple words: “I Do”. One thing that is for certain, however: a marriage is a legal contract, and with this contract comes certain obligations, including the requirement to provide for your spouse upon death. More specifically, if your married spouse died without a will, the Ontario Succession Law Reform Act (SLRA) dictates that you are guaranteed a preferential share of your spouse’s estate, which is now set at $200,000. 

Unfortunately, this isn’t the case for common law spouses. A common law spouse does not fall within the definition of a “spouse” under the SLRA.  This comes as a surprise to many, given that more individuals are opting not to get married. 

So, what happens if your common law spouse dies? Are you entitled to anything? 

The short answer is – it depends. If your common law spouse drafted a will naming you as a beneficiary, then the answer is likely yes! You will receive an inheritance as directed by your spouse in their will as long as the document is valid. 

But what if your common law spouse never drafted a will, or what if they didn’t leave you with adequate support? This is where things become tricky. Unlike a married spouse, the common law spouse does not have automatic property rights and will not naturally inherit their partner’s property. Fortunately, there are legal solutions to this issue. 

One solution, the most utilized route, is for the surviving spouse to file what is called a dependant’s support claim with the court. In order to succeed with your Application to the court, you will have to demonstrate to the judge that (1) you were dependant, and (2) that your partner did not adequately provide for you after they passed away. 

Adequate support can come in many forms, including a lump sum payment, periodic payments, title to properties, or a combination of such options. In reaching a decision, the court will consider many things, including, but not limited, to: 

  • Your current assets and means;
  • What assets and means you may have in the future;
  • Your capacity to contribute to your own support;
  • Your age and physical/mental health;
  • Your needs;
  • The proximity and duration of your relationship with your partner;
  • The length of time of cohabitation;
  • Any contributions you may have made to the deceased’s welfare;
  • Whether your partner has the legal obligation to provide for another dependant;
  • The circumstances of your partner at the time of death and any agreement between yourself and your partner. 

Remember the law evolves as slow as a snail, and it does not provide bulletproof protection for common law spouses. It is important you understand the difference between married and common law. 

It is important you contact a lawyer to better understand your rights.

Gabriela Caracas is an Associate at Fogler, Rubinoff LLP who practices litigation and is growing her practice in estate litigation. 

Hot Topics: Guardianship – When There is no Power of Attorney in Place








Guardianship – When There is no Power of Attorney in Place

By: Kim Gale and Gabriela Caracas

The average person does not give much thought to giving someone authority to act on their behalf though a Power of Attorney (“POA”), that is, until they are at a lawyer’s office. A serious medical issue in which incapacity becomes an inevitable reality for mom and dad may mean that it is too late for them to draft a POA. 

It is not uncommon for people to live their entire lives not knowing what a Power of Attorney is, but need it when it is too late. When is it too late? In order to have a valid Power of Attorney, capacity is required at the time of creating the document. If you are already incapacitated and incapable of making personal and financial decisions regarding your affairs, you are not capable to designate someone to handle those for you.

So what happens then when your family member or close friend becomes incapacitated and never had a Power of Attorney? You can still step in to help someone close to you by being appointed as their guardian. 

Both the Office of the Public Guardian and Trustee (PGT) and the court have authority to appoint guardians. 

The PGT can appoint a guardian in instances where they are already acting as a guardian for the incapable person, and in turn appoint another individual, such as a relative, spouse or partner, to act in their place. In this scenario a court order is not required and you can submit two forms to the PGT for consideration – (1) Application to replace the Public Guardian and Trustee as Statutory Guardian of Property, and (2) Management Plan. 

Alternatively, the court can appoint a guardian. This process is lengthier and not as straightforward, as you will need to demonstrate to the court that your mom or dad is incapable and as a result that they require a guardian. Even with the application to the court, the PGT remains involved as you are required to serve the PGT with your application to the court. 

The court will consider the following in making determinations under guardianship applications: 

  • the age of the proposed guardian;
  • where the proposed guardian resides;
  • the closeness of the relationship between the proposed guardian and the incapable person; 
  • views of other people who are involved in the incapable person’s life; 
  • the incapable person’s current wishes, if they can be ascertained; and
  • the management plan. 

Despite the fact that not all is lost when someone becomes incapacitated and does not have a Power of Attorney, it is still advisable to pursue the necessary steps to have one drafted before it is too late. By having a Power of Attorney, you are the ultimate decision maker,  and you do not have to leave such an important decision at the hands of the PGT and/or court. 

It is important you contact a lawyer to better understand your rights. 

Gabriela Caracas is an Associate at Fogler, Rubinoff LLP who practices litigation and is growing her practice in estate litigation. 

Hot Topics: Your Parent Can’t Handle Their Finances – What Do You Do?









Your Parent Can’t Handle Their Finances – What Do You Do?

By: Kim Gale and Gabriela Caracas

A very common effect of aging is cognitive deterioration. In fact, Statistics Canada reports that 1.4 million Canadians will be living with some form of dementia or cognitive impairment by 2031. Mom, dad, or both could be one of the 1.4 million Canadians, meaning that they may be unable to properly handle their affairs. 

 If this is the case with one or both of your parents, there is a solution. You can become the attorney for mom or dad. 

 Hold on, it’s not what you’re thinking. You are not required to study for the LSAT and graduate from law school. It is much simpler than that. Your parent can appoint you as their attorney under a document called Power of Attorney (POA). However, they must do this while they have capacity (which we will discuss in next week’s post). This is a legal document in which one person gives another person(s) the authority to act on their behalf. There are three types of POAs: 

(1) Power of Attorney for Property

(2) Enduring or Continuing Power of Attorney for Property

(3) Power of Attorney for Personal Care

A POA for Property specifically covers financial affairs and automatically ends at a certain time, such as if your parent became mentally incapacitated or passed away. This POA is most often used to address a particular circumstance within a specified time period, say if your parent planned to be out of the country for a significant duration of time. 

The difference with the Enduring/Continuing POA for Property is that it allows you to continue to manage your parent’s financial affairs even if they became mentally incapacitated. Sometimes it only comes into effect on mental incapacity – you have to read the document to see when it can be enacted.

Lastly, a POA for Personal Care covers all decisions of a personal nature, such as medical treatment, nutrition, hygiene, housing, and more.

Once mom/dad passes away, your attorney status/responsibilities end.

If you’re appointed as an attorney, remember to never represent yourself as “my mom’s/dad’s Power of Attorney”, this is incorrect! “Power of Attorney” is the name of the document. You are not your mom’s/dad’s document, you are your mom’s/dad’s attorney

 So what does this mean for you, being appointed an attorney under a Power of Attorney for Property? This means that your parent has given you the right to access their bank account to pay monthly bills, to manage their investments, to sell their real estate, to manage their property and so on. Generally, it covers all of the parent’s property and financial affairs. It can also be limited, such as handling the mortgage payments only, which would be clearly outlined in the document.  

 In order to have a legal Power of Attorney for Property, the document needs to be in writing and signed by your parent and two witnesses. You as the attorney, or your spouse or partner, or your parent’s spouse or partner, or any person under the age of 18 cannot be a witness. You are also expected to keep records of where all the money is coming and going, including keeping receipts.

 It is wise to plan and prepare for your parent’s imaginable kryptonite; regrettably, they are not invincible, as you once may have thought. Nevertheless, the guardian role can be passed to the younger generation – Robin can step up to protect Batman via a Power of Attorney

It is important you contact a lawyer to better understand your rights. 

Gabriela Caracas is an Associate at Fogler, Rubinoff LLP who practices litigation and is growing her practice in estate litigation.