Category: Wills

Bill 245 and predatory marriages in estate law

On March 2, 2021, Bill 245, the Accelerating Access  to  Justice  Act, passed  its  second  reading  in the Ontario legislature. There remains to be a third reading before the Act can receive royal assent, but from reading the Hansard debates, it is optimistic that Bill 245 will become law.

As wills, trusts and estates practitioners it is important to note these changes to the legislation – in particular, the change in legislation regarding wills and the marital status of the testator.

Marital status and the SLRA

Schedule 9 of Bill 245 has proposed amendments to the Succession Law Reform Act (SLRA).

The following are the proposed changes to be made to the sections in the SLRA relating to marital status:

• It is proposed that 16, where a will is revoked by the marriage of the testator, is repealed.
• An addition is proposed for 17 to add other instances  where  a  testator’s will shall be construed  as if  the  former  spouse had predeceased  the testator. Most notably, the proposal  for  s.  17  is to  include  spousal separation between married spouses to be construed as if the spouse had predeceased the testat or.
• Following the theme of separation, the proposed addition of 43. 1 adds that intestacy rules do not apply in respect of any or all property if the person and the spouse are separated at the time of the person’s death.

The changes reflect the name of the bill as accessibility to justice is accelerated through the proposed amendments. This accessibility to justice is most notable in the proposed s. 16 revocation .

How changes promote accelerated access to justice

 Current Section 16:

Revocation by marriage 16 A will is revoked by the marriage of the testator except where,

• there is a declaration in the will that it is made in contemplation of the marriage;
• the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
• the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intest ate .

As some estate litigation practitioners may have experienced, an unfortunate situation can occur

when an elderly testator marries a significantly younger spouse. Unless there was a declaration in contemplation of marriage, the elderly testator’s previous will is revoked, leaving the beneficiaries a difficult journey to regain their inheritance, and almost always at a cost. Unless a new will is created, the new younger spouse jumps to the front of the line and if a new will is actually created, it may be the case that the new will is borne from coercion or undue influence. This was the case in Banton v. Banton [1998] O.J. No. 3528.

Problems with current law as in Banton v. Banton

Banton is a classic example of predatory marriage. In Banton, 88-year-old George Banton met a 31- year-old woman named Muna Yassin, and they had”… formed a friendship, which quickly developed into a close attachment … .” After surgery for one of his many physical ailments, Banton’s doctor assessed and issued a Certificate of I ncompetence. Shortly after the declaration of incompetence, Banton, with Yassin, withdrew $10,000 from his bank account and attempted to cash more of his cheques.

When his children discovered the withdrawal and attempted withdrawals, they, as Banton’s attorneys for property, put everything  in a trust to protect his assets. The trust was created similar to Banton’s will executed in 1991. After the withdrawals were stopped, Yassin married Banton and he made a will that left everything to her.

Based on the evidence, the court found Banton’s will that left everything to Yassin to be invalid because he was incapable and it was procured through undue influence. Unfortunately for the children, the court found that the marriage was valid.

Predatory marriages

A problem with respect to capacity  is the  lower standard  required  for the  capacity  to  marry  as compared to the capacity to make a will or appoint a power  of attorney.  The act of marriage  may  be simple to understand and carry a lower bar for capacity (although when is love ever that simple), but there are still consequences to  marriage  that invoke  financial  repercussions  in  some  instances,  as seen above.

For individuals with less time – such as the elderly – marriage is extremely problematic as marriage more than likely revokes a will. For people with more time in their lives to  make a new  will, this is not as big of a problem as compared to older individuals (but everyone should endeavour to have a will

– see our previous article: Estate COVID problems part two: The importance of a will).

It is because of the revocation in s. 16 that makes the elderly extremely vulnerable to predatory marriages due to factors that include, but are not  limited to,  the deterioration  of the mind and body and loneliness . The elderly become likely targets  for  parasites  that  need to  only  come into a  senior’s life for a short period of time to steal a large amount of money from rightful beneficiaries. Yassin was married to Banton for just over a year and a half.

Why the new law is better than status quo

If the revocation by marriage is repealed, then the Banton estate would not have lost money to a predatory marriage. They would have been successful in the will challenge, and Banton would not have died intestate. He would have died subject to his true testamentary intention as in his previous will where he was capable. His five children and 18 grandchildren would not have given up a part of their inheritance to an outsider.

From the Hansard, MPP Robert Bailey addressed the floor and advocated for Bill 245. He stated the bill’s intent to combat predatory marriages through the s. 16 amendment “the proposed changes in Bill 245 that will benefit seniors who may enter predatory marriages.”

This amendment may not rid Ontario of predatory marriages, but it is a good place to start .

Estate COVID problems part two: The importance of a will

A common  theme executors  and loved ones are faced with is when their loved one dies without a will, also called dying intestate. In the first article in this series we wrote regarding the intestate succession process when a person dies without a will. Many issues arise when one dies intestate and family members may find themselves in litigation.

As of today, COVID-19 has killed over 2.35 million people worldwide. In these unprecedented times, it is imperative to consider estate planning so loved ones are left with a clear plan as to the administration of an estate and can take advantage of any tax savings. A will is a crucial aspect of estate planning.

COVID-19: Remote execution of will

Prior to the COVID-19 pandemic, a testator was required to have their will witnessed in the physical presence of two people. The government of Ontario responded to the COVID-19 pandemic with the regulation for Signatures in Wills and Powers of Att orn ey. This regulation allowed for the use of videoconferencing for witnessing and allowed for signatures to be signed in counterpart .

It is important to note that virtual  witnessing  is only  permitted  for a specific time period, which has been extended numerous times. Currently, the use of virtual witnessing has been extended to March 21, 2021 and it will likely be made permanent with the new legislation brought by the Attorney General, Doug Downey.

Affidavit of Execution

The Affidavit of Execution of Will or Codicil Form 74. 08 has also been amended effective Jan. 1, 2021. Here is the new form.

Advantages of a will: Estate trustee appointed

The advantage of drafting a will, other than having a clear roadmap of how assets should be handled and distributed, is the appointment of an estate trustee. In fact, the will itself (considered a ” living document “) bestows the power to the estate trustee to administer the estate.

Is probate required? 

It is a misconception that probate (applying for a Certificate of Appointment of Estate Trustee)  is always required. There are many scenarios where probate becomes necessary, for example, to deal with real property (depending on how title is held). Another example is when a person dies without a will, and therefore, there is no document giving them the authority to administer the estate.

Depending on the scenario, probate may not be necessary to administer an estate. There is a notable savings in both legal fees and the Estate Administration Tax (EAT) if probate is not needed.

If  an estate trustee decides to  apply for probate (with or without a will), they  will be required to pay an EAT which is 1.5  per cent of the value of the estate (defined as “all assets owned by the estate”). It is calculated as $15 for every $1,000 of the value of the estate for estates over $50,000.

As of Jan. 1, 2020, there is no EAT for estates valued at less than $50,000.

Exceptions: Primary/secondary will

 There are a few exceptions to the EAT encompassing the value of the estate –   which is when having an estate planner is an asset. As per the government website: “If the deceased had multiple wills and the court issues  a Certificate  of Appointment  of Estate Trustee  with a  Will Limited  to  the  Assets Referred to in the Will, only assets included in that specific will can be included in the value of the  estate .”

There are instances when a person dies  with  more than one  will, known as a  primary  and secondary will. This is done  so that the primary  will may  be probated  (and taxes paid on these  assets)  whereas the secondary will is not probated (taxes are not paid on these assets).

This is usually done when there is a large estate and certain assets require probate to be dealt with upon death, such as real property, and others do not require probate but require direction as to who should inherit them, such as artwork, vehicles, Royal Daulton collectibles.

Not taxed: Real property outside Ontario

 There are assets that are not subject to EAT such as: real properties outside Ontario, a beneficiary designation in a life insurance policy, RRIF, RRSP, TFSA (this is because it passes outside of the estate) and debts owed by the deceased.

This is a general overview of some key takeaways regarding the importance of an estate plan and the benefits of a will. These issues are even more important during COVID-19 and individuals may wish to take advantage of virtual options while they last.

There are some certainties in life and, while no one likes to think about them, they remain: death and taxes.

This is the second of a two-part series.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Gap in the law: Exposure to your ex even when you have a will

In part one of this series we discussed the significant and often unexpected problems that can arise when a separated spouse dies without a will. We noted how such discussions are important given the significant proportion  of  Ontarians who simply have not executed a will.

In part two, we would like to talk about another “cohort” of separated Ontarian spouses – those who have a will but have yet to update their estate plan following separation. As you can imagine, this situation, too, is one that can produce unintended and frankly messy results if such   spouses were to die while separated.

The period of spousal separation is a difficult one for innumerable reasons

• emotional, familial, financial and legal (to mention just a few). What’s more is that separated spouses become stressfully encumbered with the discussions and responsibilities surrounding the agreement to separate and the effect this will have on their lives, families and assets. Suffice it to say that ideas about “What will happen when I die?” are not always high  on the mind in such tough circumstances.

And yet, the effects of dying during a period of separation without having updated your estate plan can create immense and unintended problems.

Many Canadians assume that the act of separation in itself triggers legal changes to their will and estate plan. This is incorrect. In Ontario, the Succession Law Reform Act (SLRA) automatically revokes gifts in a will to former spouses upon a subsequent divorce, and such former spouses are deemed to have predeceased the testator who made the will. But, again, they apply to married couples who have formally divorced , and not separated spouses. A couple choosing to separate is distinct from the obtaining of a formal divorce and will have no impact on your will .

Notably, any gifts in your will to married-but-separated spouses or to former common law spouses remain valid after separation.

Generally, such gifts can only be revoked: by executing a new will removing the gi ; by executing a separation agreement which clearly and cogently addresses rights regarding  each other’s estates;  or the obtaining  of a final divorce. Of these options, the most effective (and very likely the quickest) way to prevent your separated spouse from taking under your now outdated will is to make a new one.

What to do

You can change your will really at any time following separation – you do not have to wait for a separation agreement to be executed and/or for property claims by your former spouse to be finally resolved.

That said, updating your will to remove your spouse may not completely disentitle him/her from making claims against your estate upon your death. You should be aware that:

• In Ontario, your separated spouse may continue to have a claim against your estate if you have not yet come to a settlement regarding your family property. If you are still technically married to your spouse upon death, he/she may, for instance, make an equalization claim against your estate under the Family Law Act. Generally, this would entitle him/her to receive from your estate as if you had been divorced immediately prior to your death by using the net family property calculation, which generally aims to give the surviving spouse one-half of the “value of the marri ag e.”
• If your updated will leaves your estate to beneficiaries other than your spouse, your spouse may still have a claim against your estate for any amount owing under an executed family property settlement, such as any divorce orders, separation agreements and other related agreements affecting property rights/claims (including claims for unpaid child/spousal support). In this case, your spouse effectively becomes a creditor of your estate, and any amounts remaining after the family property claim has been paid can then be paid out to estate
• Separate from and/or in addition to the above, note as well that if your spouse is still financially dependent upon you at the time of your death, then under the SLRA, they may be entitled to bring a court application for a claim as a “dependant” by making a dependant’s support claim. Ontario law recognizes that you may continue to have financial responsibilities vis-a-vis your “dependents,” which can include spouses and former spouses not provided for (adequately or at all) in your will. Note that there exist clawback  provisions at s. 72 of the  SLRA to satisfy claims for dependant support, meaning that, suddenly, assets that had previously fallen “outside” of a deceased’s estate – like a life insurance policy –  may be “clawed back” for the purposes of support .

So, while it is critical to update your will upon separation, such an action does not “wash your hands” of existing or future (court-ordered) obligations  found to be owing to  your spouse after you have   died. These potential obligations should be discussed with your estate planners so that you may be better informed about how to plan for them (e.g. through such things as insurance products which  may be available to cover such obligations).

Of course, your will is but one component of your entire estate plan, which may likely include, among other things, beneficiary designations (e.g. RRSPs, TFSAs, life insurance), jointly held property with embedded rights of survivorship, powers of attorney and family trusts.

As with your will, the act of separation has no automatic legal effect upon how these other significant components of your estate plan are structured/designated, and separation agreements and family property settlements tend to deal  with some, but  not  all, of these  will substitutes. They  therefore also require immediate and individual consideration from you and your estate planner.

In many cases, addressing other components of your estate plan is just as critical as updating your will.

To provide one example, in study and in practice, we have come across too many unfortunate cases  in which someone dies with several beneficiary  designations still in favour of his/her separated spouse. Generally, court cases on point have consistently held that these existing designations will mean that the subject accounts/policies will pass to the separated  spouse –  something that is likely not in line with the deceased’s intentions . Even if you have signed a separation agreement that is intended as a full release of any and all claims that either spouse has against the other, as it may not contemplate or otherwise may not be enough to deny your spouse proceeds of an account/policy for which he/she is the designated beneficiary.

If you are going through a period of spousal separation – and this pandemic has unfortunately been host to an uptick of such relationship breakdowns –  it  is important to consider the meaning and effects of separation in the context of your estate plan. Separation is an especially tricky time, and  you and your family law lawyer should always work with an estate planner during this time to ensure your intentions are fully met – in life and in death.

This is part two of a two-part series.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Gap in the Law: Exposure to your Ex when you Don’t have a Will

The pandemic has put relationships to the test – and not all seems to be passing. Spousal separations are expected to increase, with a likely spike in divorces when things get back to “normal”. What most may not realize is that between the time when couples say “its complicated” to the time they divorce, their spouses are still entitled to substantial portions of their property on death if they do not prepare a will.

Now that we are reflecting on our mortality (and if you’re reading this, perhaps your relationships), we must look at how we may be able to protect our assets in that thorny stage between separation and divorce, if we were to die. This is especially important to discuss when it is also recalled that, quite unfortunately, most Canadians either do not have an executed will, or have not updated their existing will in light of new life circumstances.

Separation and Intestacy

Many Ontarian spouses considering or in the midst of a separation may be surprised to learn that such separation has no legal impact for the purposes of Ontario’s intestacy rules as outlined in the Succession Law Reform Act (SLRA). The SLRA defines a spouse as “either of two persons who… are married to each other”, and does not contain any provisions which contemplate separate treatment for spouses who are still married but living in separation. This is significant when it is kept in mind that, per Canada’s Divorce Act, spouses are generally granted a formal divorce after at least one year of separation. In effect, this means that, during this sizable period of time, separated spouses are given no special treatment under the SLRA.

As a result, if one of the spouses were to die without a will during separation, the surviving spouse retains significant entitlements to the deceased spouse’s estate. When an individual dies without a will in Ontario, the surviving spouse is entitled to the first $200,000 of the value of the deceased’s estate (this is called the spouse’s “preferential share”). Beyond the preferential share, the surviving spouse is also potential entitled to a “distributive share” of the remainder of the estate, if any. This amount varies depending on the number of children or remoter issue who have survived the deceased. Generally, though:

• If the deceased had no descendants, the surviving spouse receives the remainder of the estate absolutely. 
• If the deceased had one child (or descendents of a deceased child), one-half of the remainder of the estate will go to the surviving spouse, and the other half will go to the child (or the descendents, as the case may be).
• If the deceased had more than one child (or descendents of deceased children), one-third of the remainder of the estate will go to the surviving spouse, and two-thirds will be divided between / among the deceased’s children (or their descendants if a given child is deceased, as the case may be).

The intestacy rule in the SLRA are both well meaning and much needed. They are there to provide Ontarians with a “statutory will” for situations – of which there are unfortunately many – where one dies without a will, or where a valid will does not include provisions regarding the distribution of the residue of the deceased’s estate (“partial intestacy”). While the rules apply a one-size-fits-all approach, it is reasonable for the legislature to provide significant entitlements to surviving spouse in this way, as this is roughly in line with how a deceased spouse would have preferred and indeed desired to provide for the person to whom they have been happily married.

However, these preferences or desires do not hold so well in situations of separation, where spouses may be likely to want more substantial portions of their estate to be distributed to other parties. In such circumstances, the one-size-fits-all intestacy rules can significantly undermine whatever the deceased spouse’s intentions may have been and increase the likelihood of estate litigation among actual or potential beneficiaries.

What to do?

In light of the above, the most obvious step for a separated spouse to take is to execute a will outlining their specific intentions regarding the distribution of their estate. However, the unfortunate reality is often that a spouse may die during a period of separation before they have had the opportunity to take this step. Situations like this may have indeed arisen during the COVID-19 pandemic.

Another step – and one which is very common – is for spouses to execute a separation agreement in which they release or vary their entitlements to one another’s estate. While this seems straightforward, and while courts tend to construe such provisions narrowly and accept them as valid releases only when they are “clear and ambiguous.” it somewhat goes without saying that such provisions do often lead to litigation. If you are contemplating entering a separation agreement, then, it is highly advisable that you do so in consultation with a lawyer. We have unfortunately come across too many circumstances in which separation agreements are drafted without any provisions regarding rights to a spouse’s estate upon an intestacy or include estate-related provisions which are too broad or ambiguous.

Contemplating and planning for one’s death is uncomfortable and often feels less immediate than so many other life obligations. To make matters worse, there are not enough effective and easily accessible resources for Ontarians to use to inform themselves about the importance of proper estate planning, even while they remain young. This article is meant to serve as a reminder that there are certain life situations in which these unfortunate trends can lead to great problems.

This is part one of a two-part series.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

The Problem of Racist Wills in Ontario

The common law affords immensely protects testamentary freedom—the ability of testators to dispose of their property upon death as they please. Indeed, the current state of Ontario law is that testators may dispose of property in their will in a given fashion for racist, xenophobic, or prejudiced reasons. This is why it is often colloquially noted that “racist wills” are possible in Ontario.

It has been several years since Ontario’s highest court reaffirmed the sanctity of testamentary freedom along the above lines in Spence v BMO Trust Company.^[1] Nevertheless, in this current period of societal unrest in which many groups are seeking ways to better identify and address systemic racism, it perhaps becomes an ideal moment to re-discuss the ruling in Spence and the balance that the common law has thus far struck between testamentary freedom and discrimination. And, while the Ontario courts have so far rejected undermining the protection the common law affords to testamentary freedom in the context of private dispositions in a will, should there be legislative action in this sphere?

In Spence, the Ontario Court of Appeal (“ONCA”) delivered a strong statement in support of testamentary freedom.

The case stands for the proposition that:

 

• It is not open to courts to scrutinize an unambiguous and unequivocal disposition in a will, with no discriminatory conditions or stipulations;
• Even if a beneficiary (or a third party) claims that the underlying (discriminatory) motives of the testator undermine public policy; and
• Third-party extrinsic evidence of the testator’s purportedly discriminatory motives are inadmissible in such circumstances.

 

Spence involved two key parties: the testator who is Eric Spence, and his daughter, Verolin, both of whom were black. Eric Spence had left his estate to his other daughter, Donna, and her two sons. A dispute arose when Verolin had a child with a white man. He ceased communicating with Verolin during the final 11 years of his life and also updated his will to completely exclude her.In his will, Eric specifically excluded Verolin, stating in it that “she has had no communication with me for several years and has shown no interest in me as a father.” Yet, Verolin and her father had in earlier times been quite close, while Eric and Donna had virtually no contact over many years.

Verolin brought an application urging the court to look deeper into the Spence family affairs. She argued that her exclusion from the will was for racist reasons and should therefore be void for public policy. A lifelong friend of Mr. Spence even testified that his true reason for excluding Verolin from his Estate was that the father of her son was white. Mr. Spence had apparently raged that he had no further use for Verolin and her “bastard white son”, and that he intended to exclude her from his will because of her life choice. These racist intentions were reported also by other family and friends who had knowledge of them from personal conversations with Mr. Spence. However, as the above suggests, they were not detailed in his will.

The Superior Court of Justice agreed with Verolin, finding that Mr. Spence’s reasons for disinheriting his daughter were based on clear racist principles, and that the provisions of the will offended “not only human sensibilities but also public policy”. The will was invalidated at first instance on this public-policy basis.

The case, though, was successfully appealed to the ONCA in 2016. Mr. Spence’s will of course did not contain any clauses that were expressly racist. As the will was unambiguous, the Court of Appeal held that there was no reason to consider any other, “extrinsic” evidence about Mr. Spence’s motivations. Mr. Spence’s testamentary freedom in such circumstances dictated that, when the will demonstrates clear and unambiguous intentions, these intentions should be respected during the distribution of the estate, even if their underlying motivations had been distasteful.

Practitioners in this sphere often mention that there are practical reasons why protecting testamentary freedom in this fashion can be described as necessary. For one, if arguments like Verolin’s were to succeed, estate litigation would surge because third-party extrinsic evidence about a testator’s underlying motivations would increasingly be admitted and scrutinized. Further, consider this hypothetical: What if a parent did not leave a gift … for an independent adult child because the child struggled with a drug addiction and was liable to squander his inheritance? Addiction is a mental illness and therefore the will may be found to be discriminatory on the basis of disability. Indeed, such situations may prove frustrating to testators and could constrain testamentary freedom in awkward ways.

Legislative action or investigation in this area would help to spur further advancements in Ontario’s ongoing battle to better identify and address systemic racism. A major reason why testamentary freedom is so assiduously protected in the courts is because of the centrality of property ownership in our society. We view the freedom to use and dispose of our property as a core fundament of our liberal democracy. And yet, maybe this is what makes legislative change in this area so desirable to consider.

If inroads could be made in this area so that such things as “racist wills” received less legal protection, then it could introduce major changes in the ways that property owners dispose of their property. In other words, introducing progressive improvements or recalibrations to some of the core foundations of our society, while difficult, may be a means of introducing the most impactful change.

In this current period, where we find ourselves as keen as ever to identify the various ways in which systemic racism is caused and perpetuated in our society, perhaps it is high time for our legislatures to review and reconsider the balance Spence struck between testamentary freedom and discrimination.

[1] 2016 ONCA 196 [Spence].

[2] Robin Spurr, “Spence v. BMO Trust Company: the case of the racist father”, Estate Litigation Blog (February 27, 2015).

 

The biggest problem writing about what lawyers should know during COVID-19 is that most of the information comes from social media, group email chains, or what you hear through the grape vine. There are also so many Notices it is hard to keep up!

Just like an affidavit – Where I make statements based on information provided by third parties, I will state the source of such information.  If I am not sure of the source – I will list this under rumours. If from a credible source, these will be listed as truths with link if needed.

I do focus on the Superior Court – but here are links to the OCJ, Federal Court, Court of Appeal,  and Supreme Court.

So without further adieu, let’s begin:

Where can I find the Notice to the Profession for Superior Court?

The Ontario Superior Court Website in “What’s New.”

When will the Ontario Superior Court open?

Truth – The Superior Court has suspended hearings but is not closed. It is still “open.” According to the Notice to the Profession, effective May 19, 2020: The Ontario Superior Court of Justice suspended regular operations as of Tuesday, March 17, 2020. Small Claims court proceedings are suspended.

“Given the on-going public health situation due to COVID-19 and the uncertainty as to when it will be safe to return to courthouses, the SCJ:

1. Will not resume in-person hearings of any court matters until July 6, 2020, at the earliest.  It will, however, continue to hear matters virtually, and expects to shortly further expand the scope of matters that will be heard virtually.
2. Will not recommence criminal or civil jury selection or jury trials until September, 2020, at the earliest.”

When will my matter be re-scheduled?

Truth –  Appears to depend on the matter and location of court.

If it is a non-urgent matter the Superior Court has announced that starting April 6, 2020, they will start hearing other matters (in addition to “urgent” matters). The information appears to differ based on the region of the court.

The PDF Toronto Estate List is pasted below and click here for the link to the commercial list.

Toronto Estate List – matters scheduled after March 15, 2020 are adjourned until after June 1, 2020 and not currently being rescheduled. A further update to Changes to the Commercial List was made on May 5, 2020 with general remarks and suggested protocols found here.

Toronto Commercial List – same as above, rescheduled after June 1, 2020, but the courts will contact counsel to indicate rescheduling.

Rumour – It seems likely that the courts will be adjourning until at least after July 6, 2020 if your matter doesn’t fall into the “what they are willing to hear after April 6, 2020”.

Can I still file my materials?

Truth – According to the Consolidated Notice for Procedures Governing Civil and Family matters: “For matters that are not “urgent” or have not been identified to be dealt with in a Region’s Notice, counsel and parties are discouraged from physically attending courthouses to file documents in person.  Parties should file Claims or Statements of Claims, Statements of Defence or certain other civil Pleadings through the Civil Claims Online Portal for Superior Court civil matters. Plaintiff’s Claims in Small Claims Court matters should be filed through the Small Claims Court online filing service.  Limited family proceedings can also be filed electronically through the Ministry of the Attorney General’s website for filing divorce applications.”

The courthouses seem open – but ask you not to go in. They want you to file online. Check your region.

Toronto Estates List – materials can be filed and these include: Notices of Application will be issued but with a date “to be fixed by Registrar,” Notices of Objection, probate/Certificate of Appointment Applications, motions for consent, ex parte orders.

Rumour – Toronto Estate List asking you to serve by regular mail. Some have had success filing in person.

Some courts seem to be accepting by regular mail, others file online, others say their limited hours to receive filings are for urgent matters only if approved by a judge. Best way to move forward would be to email your court co-ordinator.

Can I get an Application Date?

Truth – As stated above, Notices of Application will be issued but with a date “to be fixed by Registrar”

Rumour – It is unknown whether the courts will reach out to Applicants to set a date or if the Applicants are expected to contact the court to seek a date. It is expected these dates will be very far in the future.

Why have there been so many notices?

Truth – Things are evolving quickly. Here is the Notices no longer in effect.

What about limitation periods?

Truth – in an unprecedented move, limitation periods are suspended and retroactive to Monday, March 16, 2020. Click here for the link. Please note: the Construction Act is exempt.

Can a judge still sign a consent order?

Truth – appears yes, though depends on your court region and matter.

Rumour –  It seems to be that if you email the trial co-ordinator, they will point you in the right direction. The concern is that it may require drafting a whole motion record just to get a draft order signed, but it seems to depend on what the trial co-ordinator says, the court, and the matter.

What matters will be heard?

Truth – Your matter must still be URGENT! Or fall under the accepted matters being heard. The process for your matter to be heard, again depends on your court and this part is detailed very clearly on the Notice. A helpful article for what is deemed urgent can be found here.

As per the Responsibilities of Lawyers and Parties: “During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means.  This guidance also applies to self-represented parties.

For example, where it is possible through virtual means to comply with procedural timelines, produce documents, engage in discoveries, attend pre-trials, case conferences and hearings, and respond to undertakings, those steps should be pursued.  Where COVID-19 has prevented lawyers and parties from fulfilling their obligations, they should be prepared to explain to the Court why COVID-19 has rendered compliance not feasible.”

Rumour – The courts appear to be more willing to hear general matters but it appears there is still a triage judge who approves what will be heard. Urgent still means urgent, some examples: if someone is dying, will be harmed or put in harm, will become homeless, serious financial harm or a matter directly related to COVID-19. You usually need to explain to the trial co-ordinator why your matter should be heard.

Can I commission an affidavit without being in the same room?

Truth – Yes. The Law Society has issued a helpful Q&A link here.

The best practice is to be in the same room, but as a result of COVID-19, the requirement that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” is not requiring the lawyer or paralegal to be in the physical presence of the client. Commissioning via video conference will be permitted. It is up to the lawyer to manage these risks.

What about Wills?

Under s. 7.0.2(4), of the Emergency Management and Civil Protection Act, the Lieutenant Governor in Council made an order permitting virtual witnessing for wills and powers of attorney provided that at least one person who is providing the service as a witness is a licensee pursuant to the Law Society Act.

Executions of a will is allowed in counterparts: “Identical copies of the will in counterpart, which shall together constitute the will.”

Can I file an unsworn documents?

Truth: For urgent matters, the notice states that unsworn affidavits may be delivered but the affiant must be able to participate by phone/videoconference to swear/affirm affidavit.

Rumour: It seems for non-urgent matters, lawyers seem to be accepting a draft of an unsworn affidavit from the lawyer stating their client has reviewed the affidavit, confirms its truth and their client to swear the affidavit at a later time. However, see above, affidavits during this time may be commissioned without being in the physical presence.

What about identifying and verifying clients?

Truth – There is a difference between identifying and verifying clients.

There is no requirement to meet with a client face-to-face to identify the client.

Identification is for the purposes of taking instructions from your client and can be done over the phone, email, or video conference.

Verification is for the purpose of payment, receipt, or transfer of funds and requires face-to-face by you or another commissioner/guarantor to swear an attestation as to their identity. This is all on the LSO link.

Can I serve parties by email now?

Truth – The Rules of Civil Procedure are still in effect but lawyers are expected to act reasonably. A judge would likely think counsel’s refusal to accept service via email during this pandemic is not acting reasonably.

In Ali v Taraq, 2020 ONSC 1695 (Canlii)  dated March 19, 2020, Justice Myers allowed service to be made by email as effective service when sent, in his endorsement, without requiring a formal order or motion for this issue.

Can I serve the Crown by email, such as the PGT?

Truth – Yes. There has been an order changing how documents are served on the Crown, Ministers of the Crown including the Attorney General of Ontario, the Children’s Lawyer, the Public Guardian and Trustee and the Director of the Family Responsibility Office has been issued under the Emergency Management and Civil Protection Act.

Effective immediately, the following documents for any civil (non-criminal) proceeding, administrative proceeding or intended proceeding must be served by email until further notice to:

• cloc.reception@ontario.ca for originating processes (e.g., a notice of claim, a statement of claim, a notice of application or other document that initiates a proceeding) to be served on the Crown or any Minister of the Crown including the Attorney General of Ontario
• clbsupport@ontario.ca for a Notice of Constitutional Question to be served on the Attorney General of Ontario
• frolegalservice@ontario.ca for any legal document required to be served on the Director of the Family Responsibility Office
• OCL.LegalDocuments@ontario.ca for matters required to be served on the Children’s Lawyer including service on any other person where a document must be left with the Children’s Lawyer
• PGT-Legal-Documents@ontario.ca for matters required to be served on the Office of the Public Guardian and Trustee including service on any other person where a document must be left with the Public Guardian and Trustee
• the email address of the counsel of record for the Crown, Minister, Family Responsibility Office, Children’s Lawyer or Public Guardian and Trustee in any ongoing proceedings (for any documents other than originating processes)

Emails should less than 10MB and must include the sender’s name, address, telephone number and email address.

Order is below.

Are evictions suspended?

Truth – Eviction orders have been temporarily suspended on March 19, 2020 until further notice. “Tribunals Ontario will not issue any new eviction orders until further notice.”

What else should I do or know?

Truth – Follow your court on twitter – the Superior Court of Ontario handle is @SCJOntario_en

There are some great online programs offered by the community (organizations like TLA, OBA, and Advocates Society) to get your CPD hours.

I’m doing virtual coffee meetings – if you want to chat on zoom, feel free to reach out!

Stay home. Stay safe.

I’m sure I’ll be updating you soon.

 

Estate List Notice:

Changes to Toronto Region Estates List Operations in Light of COVID-19, March 23, 2020

1. In accordance with the Notice to the Profession issued by Chief Justice Morawetz, March 15, 2020, all regular matters which have been scheduled and are not urgent, or time sensitive, are adjourned to after June 1, 2020 and are not currently being rescheduled, subject to any further direction from the court.
2. The judges of the Estates List will continue to hear and decide urgent and time sensitive matters. The procedure for urgent matters on the Estates List is the same as the procedure for urgent matters on the Commercial List and will be in accordance with the procedure set out in the Changes to Commercial List Operations in Light of COVID-19 March 16, 2020 advisory, with necessary changes. For greater certainty, all urgent requests and materials on the Estates List should be sent to the Commercial List trial coordinator at Toronto.commerciallist@jus.gov.on.ca.
3. There is no change to the usual procedure for filing materials in matters that are to be considered by the court in writing, including motions for consent orders and ex parte orders. Materials for matters to be heard in writing may still be filed at the Estates Office, subject to any further direction of the court.
4. Applications for Certificates of Appointment are still being accepted and processed by the Estate Office.
5. Notices of Application (Forms 14E, 74.44, and 75.5) will continue to be issued by the Estates Office but instead of fixing a return date the Notice of Application shall indicate that the matter will be heard: “on a date to be fixed by the Registrar.”
6. Notices of Objections (Form 75.1) may be filed in the Estates Office as usual.

Order for Service via Email to Crown

 

 

 

 

 

 

 

 

My Common Law Spouse Died – Now What?

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.