WEL Newsletter, Vol. 10, No. 4, July 2020
  ,

Firstly, Happy Summer-before it's over, remember to take some personal time to enjoy and relax! It's been really hot of late....enjoy the warmth of the sunshine!

Secondly, I would like to thank and acknowledge with much appreciation all those friends and colleagues who have continued to help support me and our team in maintaining the success of our business. Our whole team is thankful.

In these difficult days, a referral is treasured. I am sincerely grateful for your enduring trust in our team and for those of you who have provided us with clients to serve.

Enjoy the Read,
Kim

I. WEL NEWS
1. CHAMBERS HNW 2020

Kimberly Whaley has been ranked once again in the top band of the Private Wealth Disputes - Canada category by Chambers HNW: The World's Leading High Net Worth Advisors, 2020.

2. INTERNATIONAL FEDERATION OF AGING (IFA) VIRTUAL TOWN HALL SERIES, JUNE 19, 2020
 
Kimberly Whaley provided the opening remarks and fielded questions from across the globe on June 19, 2020 at the International Federation of Aging Virtual Town Hall Meeting: COVID-19 and Older People: Preventing and Protecting Against Elder Abuse. 
 
3. ONTARIO BAR ASSOCIATION AND OAKVILLE PUBLIC LIBRARY,  
THE  LAWS PROTECTING OLDER ADULTS, JUNE 24, 2020

Kimberly Whaley presented on behalf of the Ontario Bar Association at the Oakville Public Library & White Oaks Library Branch by webinar on The Laws Protecting Older Adults: Elder Law in 2020
 
4. ONTARIO BAR ASSOCIATION AND HAMILTON PUBLIC LIBRARY, THE LAWS PROTECTING OLDER ADULTS, JUNE 29, 2020
 
Daniel Paperny presented for the Ontario Bar Association at the Hamilton Public Library's Central Branch location by webinar on The Laws Protecting Older Adults: Elder Law in 2020. 
 
5.  WEL PARTNERS VIDEO ON ELDER LAW, JUNE 2020

We are pleased to share with you our new Elder Law Video. Please feel free to share it with your colleagues.
 
WEL Partners on Elder Law - Video Presentation (June 2020)
WEL Partners on Elder Law - Video Presentation (June 2020)
 

This video is LSO accredited and contains 15 minutes of Professionalism Content and is eligible for up to 0.75 Substantive Hours
 
The video is an overview of our recently released new book, Whaley Estate Litigation Partners on Elder Law which is available for download in PDF format from our website:   
http://welpartners.com/resources/WEL-on-elder-law.pdf
 
If you would like to receive a hard copy of our book we would be happy to send you one (while supplies last). Please contact Blossom Pangowish at  blossom@welpartners.com to make arrangements.
 
Visit our website at http://welpartners.com/resources/publications to view our other published books .

II. WEL SHOUTOUTS
WEL CONGRATULATES RANKED LAWYERS IN THE 2020 CHAMBERS & PARTNERS  HIGH NET WORTH RANKINGS: PRIVATE WEALTH DISPUTES IN CANADA

Band 1:
Archie Rabinowitz, Gowling WLG (Canada) LLP
Clare Burns, WeirFoulds LLP
Daniel J. Dochylo, Borden Ladner Gervais LLP
Ian Hull, Hull & Hull LLP
Kimberly Whaley, Whaley Estate Litigation
Melanie Yach, Aird & Berlis LLP
 
Band 2:
Angela Casey, Casey & Moss LLP
Craig Vander Zee, Torkin Manes LLP
David Lobl, Gowling WLG (Canada) LLP
Debra Stephens, Tupman & Bloom LLP
Justin de Vries, de Vries Litigation LLP
Kelly Charlebois, Miller Thomson LLP
Margaret Rintoul, Blaney McMurtry LLP
Nancy Golding, Borden Ladner Gervais LLP
Suzana Popovic-Montag, Hull & Hull LLP
 

III. FOOD FOR THOUGHT
 
By Mark Handelman

Dear Doctor,

Please refer me to a therapist for treatment.  I am suffering PTSD.  
Yes, I have Pastrami Traumatic Stress Disorder, and not even from eating pastrami!
  
It's my nephew Chuck's fault.

As you have experienced, I've approximately mastered the art of making pastrami.  Thought I'd found my new calling: delivering pastrami to lock down people in need of comfort food -- like pastrami.

Chuck was a beneficiary.  At first, he was appreciative.  But then something went wrong and he got evil.  Truly evil.  I can hardly even think about what he did without breaking into a cold sweat, shivers and nightmares. Daymares too.

By all accounts, the pastrami I'm turning out is pretty darn good.  The porkstrami too.  I'm proud of it.  Or at least I was proud of it but now I'm having trouble even thinking about pastrami because of my nephew.  Just now for example, I was thinking about today's lunch and you cannot imagine what happened to me when thoughts of pastrami entered my mind.  
And I feel badly for him too because, in explaining to you why I need therapy for PTSD, I have to "out" Chuck.

What did Chuck do, you ask?  Even thinking about it makes my hands shake, so please forgive any spoiling errors in this massage.

I still can't believe it, but he sent me a picture, which I also cannot believe.

I mean really, how did he think the world would react on discovering this person put LETTUCE in a pastrami sandwich?  Who would do such a thing And, why?  The defilement of a tradition!  For all I know, and I worry about it, he put mayonnaise in too!  

So Doctor, as you can see, I need therapy.  Well, I always did, but now it is serious.  And, instead of pastrami for lunch today, I'm having to make do with a smoked salmon, cream cheese and rare Prime grade dry-aged prime rib in my sandwich.

Please help!

Sincerely,
MH

Notes:
  1. The correct sandwich is: light rye, no seeds, grainy Dijon mustard and pastrami.  Warm the sandwich in the microwave.  A bagel is permissible, Montreal style is best, but avoid those fluffy giant things from the supermarket.  
  2. If you find yourself with spare time and are inclined to try your hand at pastrami, google Steve Raichlin's recipe and process.
  3. I get a better result than using his recipe by cooking is sous vide before smoking.  If you want my recipe and process, email me here at WEL.
  4. Either way, you need Prague Salt #1, aka pink salt #1.  Peach coloured wax butcher paper is useful for resting the brisket after smoking.  Both available from Amazon.
  5. The Butcher Shop on Shorncliffe in Toronto is a good pace to get a whole brisket, though Costco sometimes has them.
  6. Pastrami freezes well, either vacuum sealed or in plastic sandwich bags.
Mark Handelman is counsel to our firm.  He is a former member of The Human Rights Tribunal of Ontario and currently a part time Member of The Ontario Consent and Capacity Board.  While he practiced law in London Ontario, he wrote over 300 restaurant reviews and food articles for The London Free Press.

IV. LAW REVIEW
(i)  TO RECUSE OR NOT TO RECUSE, THAT IS THE QUESTION...
By Matthew Rendely
 
On May 11, 2020, our firm successfully argued the dismissal of a motion seeking the recusal of the Honourable Madam Justice Dietrich as the presiding judge over two applications that are currently being heard together on the Toronto Estates List: one application is with respect to the administration of an estate (the "Estate Application") which I will not address here; and the other application is proceeding under the Substitute Decision Act (the "POA Application") which is also not addressed.

On May 25, 2020, the Honourable Madam Justice Dietrich issued reasons in an Endorsement denying the request for her recusal. These reasons are unreported at this time, you can read a copy of Justice Dietrich's said 

The Recusal Motion

The grounds for the recusal motion, as set out by the moving party in his motion materials, were that Justice Dietrich allegedly made comments in the course of a case conference which demonstrated bias or a reasonable apprehension of bias in her mind with respect to the applicant's credibility. 

The Endorsement of Justice Dietrich dismissing the recusal motion succinctly outlined the facts of each of the underlying applications, and in particular, those alleged comments which underpinned the allegation of bias or reasonable apprehension of bias by the moving party. Since the Estate Application and POA Application are still proceeding before the court, we leave the reader to review the facts as set out by Justice Dietrich in her said Endorsement.

The Law of Apprehension or Reasonable Apprehension of Bias

The Supreme Court of Canada has reliably held that the test which a judge must consider and answer in deciding whether to recuse themselves on the grounds of bias or reasonable apprehension of bias is the following: 

Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think it is more likely than not that the decision-maker, whether unconsciously or consciously, would not decide the matter fairly?[1]

This test contains a two-fold objective element: 

(i)      the person considering the alleged bias must be reasonable; and, 
(ii)  the apprehension of bias must also be reasonable in the circumstances of the case.[2]

To unpack the elements of this test further, case law explains that a "reasonable person" is one who has knowledge of all of the relevant circumstances, including knowledge of the judicial process and the nature of judging.[3] As for the notion of "bias", an allegation is to be evidenced by a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial. [4]

Litigants must be aware that the threshold to prove bias is high. The Ontario Court of Appeal has held that in cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of "judicial impartiality". [5]

It is important to note that the principle of judicial impartiality is enshrined in the Oath of Office, which is taken by every judicial or officer of a court in Ontario in accordance with section 80 of the Courts of Justice Act. As such, the ONCA has declared that for a judge to step aside in the face of a specious bias claim is to give credence to a most objectionable tactic. [6]

Conclusion

Although the case law suggests that these kinds of recusal motions are not commonly addressed in estates matters, I hope that this article will in any event serve as a useful primer to the reader on the law of bias or reasonable apprehension of bias. 

Most importantly, I hope to highlight by way of this article the importance that the legislature and the courts have placed on the bright line principal of judicial impartiality; as such principle underpins the oath of office, and in effect, the administration of justice.
 
I close by repeating the words of the Honourable Mister Justice Perell from one of his many decision in the case of Fontaine v Canada (Attorney General:   http://canlii.ca/t/hpqpj . [7]  Justice Perell explained that allegations which call into question the court's impartiality and its integrity, such as allegations of bias or reasonable apprehension of bias, "diminish public confidence in the court's supervision" and "may possibly be contemptuous".


[1]  Yukon Francophone School Board, Education Area No. 23 v Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 SCR 282, at paras 20-21. 
[2]  R v S (RD), [1997] 3 SCR 484, at para 111.
[3]   Duca Financial Services Credit Union Ltd v Smith, 2016 ONSC 6289, OJ No. 5202, at para 18;  Rogerson v Havergal, 2020 ONSC 2164, at para 31.
[4]   Ibid at para 58.
[5]  Bailey v Barbour, 2012 ONCA 325 (CanLII), at para 25.
[6]  Beard Winter LLP v Shekdar 2016 ONCA 493 (CanLII), at para.
[7] Fontaine v Canada (Attorney General), 2018 ONSC 357 (CanLII), at para 4.
(ii)  CORONAVIRUS EXPOSES THE VULNERABILITY OF SENIORS, IMPORTANCE OF GOOD PLANNING
By Daniel Paperny
 
Introduction

This past June was "Elder Abuse Awareness Month" and June 15, 2020 was "World Elder Abuse Awareness Day", recognized by the United Nations and around the globe as a time to address the vulnerabilities, discrimination and abuses faced by seniors. Now, more than ever, in the time of COVID-19, it is imperative that we raise awareness as a society about the hardships faced by our growing elder population, and explore ways we can curb instances of elder abuse. 
 
As we make our way through the fifth month of the coronavirus pandemic, one horrifying aspect of the virus has become devastatingly clear: COVID-19 has disproportionately and fatally impacted our community's senior population. 
 
The over-representation of older adults amongst coronavirus victims is staggering: it is estimated that long-term care residents account for over 80% of those who have died from COVID-19 in Canada.
 
The virus, by ravaging the weakest and most vulnerable members of our society, has revealed deep-rooted systemic deficiencies in long-term care regimes across the country.
 
In addition to exposing shortcomings in the way that care homes are run, the coronavirus has shown just how vulnerable and isolated older adults in this country are in general, something that estate and capacity litigators are sadly all too familiar with. 
 
In the context of estate litigation, we see first-hand the vulnerability of older adults, which can often result in seniors being exposed to fraud, coercion, theft, undue influence and physical, emotional or financial abuse. 
 
Instances of elder abuse are notoriously under-reported for a multitude of reasons (inability of the older adult to report, fear, shame, isolation, capacity issues, etc.), which is all the more reason why we, as a society, must make a concerted effort to shed light on this troubling issue and take steps to address elder abuse.  
 
Aging, Vulnerability and Elder Abuse
 
As we age, we are not only confronted with increasing physical and mental health issues that can impair general function, mobility and cognition, but we also often find ourselves with fewer and fewer supportive friends and family members. Spouses, friends and relatives pass away or grow apart, children move out or become consumed with their own responsibilities, and oftentimes older adults are not only saddled with diminishing health, but find themselves increasingly isolated as they age. 
 
It is estimated that approximately 25% of people aged 65 and over live alone, while a troubling 50% of women aged 75 and over live alone. Aging and loneliness, tragically, seem to go hand-in-hand. 
 
This solitude of aging, coupled with deteriorating health, means that oftentimes the only plausible solution for seniors to live comfortably and safely, while meeting their care needs, is to move into a long-term care facility where the necessary care can be provided for them. 
 
Another result of poor health combined with the propensity towards documented loneliness in the older adult community, which we see often in the world of estate litigation, is that older adults become increasingly susceptible to undue influence, coercion, fraud, and even financial and/or physical abuse by unscrupulous individuals who pick up on the fact that seniors are particularly vulnerable to be taken advantage of.
 
The elderly are regularly the most targeted and victimized group when it comes to fraud scams. And they can find themselves defenceless to schemes by those who seek to take advantage of them. 
 
As estate litigators, every day we are confronted with cases where the vulnerability of older adults results in financial abuse, physical abuse, or seniors' testamentary planning (their wills, Power of Attorneys, beneficiary designations, etc.) being changed as a result of coercion or undue influence exerted by opportunistic perpetrators. 
 
One of the most tragic aspects of elder abuse is that these perpetrators are often those individuals who are closest to the senior, people who the senior relies on for care or financial support and who have the greatest ability to access and further isolate the older adult. Isolating an older adult from their already diminished network of supportive friends and families is a trademark tool used by perpetrators of elder abuse, fraud or undue influence.
 
What We Can Do
 
As we reflect and hopefully emerge as a society from the coronavirus pandemic, in addition to re-evaluating how our long-term care facilities are run, we should also be reflecting on the challenges and helplessness commonly faced by our older adult population and how these difficulties can be addressed, before it's too late. 
 
The Province of Ontario is already taking steps to correct the flawed long-term care home system in the Province, for starters, by mandating that all care facilities in the Province are equipped with air conditioning and by promising to add thousands of new beds to seniors' homes around Ontario, to cut-down on wait times and overcrowding. 
 
Simply raising public awareness of the prevalence of elder abuse and the vulnerability of seniors is one important step toward confronting these problems, although not enough on its own. 
 
Another key step is good planning by adults, to ensure that they and their assets are secured and will be properly cared for as they age by trustworthy individuals. It is crucial that these testamentary plans (wills, powers of attorney, clearly expressed wishes) are made by adults when they are capable, so that when they are incapable or debilitated by age, there are protective systems in place to make sure older adults are cared for.  
 
Appointing appropriate, loyal individuals as one's fiduciaries or attorneys for property and personal care is a crucial step that all adults should take, so that when the challenges of aging do strike, trustworthy advocates are in place (as trustees, attorneys, etc.) who will ensure that seniors and their property are looked after (not abused) as they grow more vulnerable. These steps can also help to ensure that older adults are placed into appropriate care homes and their living situations reflect their prior expectations and wishes as they age.  
 
Finally, remaining in close contact with the older adults in our lives - checking in regularly on their physical, mental and financial status - is crucially important to make sure that our older adult populations are properly cared for and not exposed to neglect or abuse. Obviously, these check-ins are made more difficult during a viral pandemic which requires social distancing, but it is also more important than ever. 
 
We should also be aware of warning signs that a senior may be vulnerable and/or susceptible to being taken advantage of, including:
 
  1. Increasing social isolation; 
  2. Increasing dependence or reliance on select individuals in fulfilling emotional, physical or financial needs;
  3. Recent family conflict or bereavement;
  4. The adult has made a new will or power of attorney document(s); 
  5. The adult has made questionable or inexplicable financial decisions; and
  6. The adult has shown changes in their behaviour or changes in the people with whom they associate. 
For more information relating to the vulnerability of our older adult population, and elder law in general, you can access our publication "Whaley Estate Litigation on Elder Law" at this link: http://welpartners.com/resources/WEL-on-elder-law.pdf  
(iii)  VARIATION OF TRUSTS
By Sareh (Lua) Ebrahimi

A trustee of an inter vivos or testamentary trust is required to carry out his or her duties in accordance with the provisions of the trust document, applicable legislation as well as the principles of common law. A trustee has no authority to vary the terms of a trust unless the trust document itself permits the trustee to vary same. Should a trustee vary the terms of a trust without authority, he or she would be in breach of his or her fiduciary duties.

In Ontario there are several ways to vary a trust: if allowed by the terms of the trust instrument; if all the beneficiaries entitled to share absolutely in the trust are sui juris and agree, the beneficiaries can demand the trust to be terminated and the trust property distributed to them in such proportions as they agree;[1] by court application pursuant to the court's inherent jurisdiction to supervise the administration of trusts, but the basis on which they would do so are very constrained;[2] pursuant to the Charities Accounting Act;[3] or by court application under the Variation of Trusts Act (the "Act"). [4]

Variation of Trusts Act (the "Act")
 
I will focus on this method of varying a trust and the test for court approval.
 
T he  A ct  only contains two provisions. The Act states that where a property is held in trust, a court may approve on behalf of (aadults incapable of consenting; (b) minors incapable oconsenting; (c) unascertained and unborn persons who mabecome entitled to benefit frothe trustand (d) persons with a discretionary interest, any arrangement, by whomsoever proposed and whether or not there is any other person beneficially interested who is capable of assenting thereto, varying or revoking all or any of the trusts or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts .[5] The Act further states that the court shall not approvaarrangemenobehalf oanperson coming within clause (1)(a), (bor (c) unlesthe carryinout thereof appears to bfothe benefit othaperson. [6]
 
When reviewing the Act, it is clear that th e language is discretionary, and while it prohibits the court froapproving a variation that does noprovide a benefit fothe incapacitated beneficiaries, there is nothing mandating a Court to approve a variation if a benefit is provided. The Act seems to have expanded on the rule in Sanders v Vautier by allowing the court to consent to a variation on behalf of beneficiaries who are not adults, do not have legal capacity, or who are unborn, or on behalf of unascertained contingent interests. However, it does not empower the court to avoid the rule in Sanders v Vautier and vary a trust in which all the beneficiaries are of full legal capacity and together have the beneficial interest in the trust property. [7]
 
The Test for Court Approval:
 
Court applications under the variation of trust legislation are typically chambers applications that don't normally result in reported written reasons for making, or refusing to make, an order under the legislation. However, there are some reported decisions that provide guidance on the interpretation of the legislation. [8]
 
In Re Irving, the Court su gg ested that it should consider three things when considerinwhether tapprove a variation:
  1. Does the proposed variation keep alive the basic intention othe testator (settlor)?
  2. Is there a benefit to bobtained obehalf of infants and oall persons whare or mabecome interested under the trustof the will?
  3. Is thbenefit tbobtained obehalf othosfor whom the court is actinsuch that a prudenadult motivated by intelligenself-interesansustained consideratioothe expectationand riskand thproposal made, would be likely to accept?[9]
Concerning the first question, caselaw has developed since Re Irving, and courts have questioned whether a variation must stay true to the testator's intention to meet the test for approval considering that the rule in Sanders v. Vautier applies regardless of the intention of the settlor.[10] Furthermore, the Act itself contains no reference to the intention of the testator.
 
Concerning the second question, it has been held that the court must measure the benefit from the starting point of the entitlement. [11]
 
Concerning the third question, it has been held that the benefit must be not just a group benefit but a benefit for every member of the class as an individual.  The variation has to provide a reasonable bargain on behalf of the infant or unborn person that an adult would be prepared to make.
 
In Finnell v. Schumacher Estate, the Ontario Court oAppeal overturned the application judge's approval of a proposed variatioon thbasis that thapplicanhad failed to provide adequate evidence of a sufficienbenefit to each non-suijuris beneficiary.

Ev e n if t h i n c a p a cit a ted  b e n e f ici a ries  b e n e f itted ( o r cert a in  o t h em did)  a s a  g r o u p , t h is w a no t e n o ug h T h e Co u rt m us f i n d t h a t t h ere is a su ff icie n b e n e f it  f o r e a ch  a n d e v ery  b e n e f ici a ry  o b e h a lf  o w ho t h C o u rt is  a s k ed to c on s e n t. [12]  T h e Co u rt  o Ap p e a d e n ied  a pp r o va o f t h p r o po s ed Deed  o A rr a n g eme n t,  b u t its deci s i o n w a s wit ho u p rej u dice to t h e e s t a te tr us tees c o mi n f o rw a r d with  a a lter n a te Deed  o A rr a n g eme n f o r a pp r o va l.
 
Must the Benefit be Financial in Order to Satisfy the requirements of the Act?
 
There seems to be two schools of thought, on the one hand, some accept that a non-financial benefit is considered a benefit for the purposes of satisfy the Act, and on the other, financial benefits should be the only consideration.
[13]
 
In Re Zekelman,[14] the court held that in determining the sufficiency of a benefit for purposes of Variation of Trusts, the court could also consider a non- financial benefit. The benefit approved by the court in that case included certain tax savings and "family harmony". The avoidance of family dissension was also recognized as a benefit for variation of trust purposes in Lafortune v. Lafortune Estate.[15] However, the weight of jurisprudence suggests, that although the court may consider non-financial benefits, financial considerations should be the court's primary concern. Non-financial benefits, by themselves are not sufficient. [16]
 
Takeaway
 
It is important when commencing any court application to vary the terms of a trust, to review the trust Deed, the tax implications involved if any, to negotiate and obtain the approval of all the sui juris beneficiaries, the Children's lawyer for the unborn and unascertained beneficiaries, as well as the Public Guardian and Trustee for the incapable beneficiary. Ultimately, approval is at the court's discretion.


[1]  Saunders v. Vautier ,(1841)Cr.& Ph.240,41E.R.482, In order to invoke this method the following criteria must be met: a) a ll of the beneficiaries of the trust must be sui juris (i.e.,mentally competent and over the legal age of majority; b) all of the beneficiaries must consent; and c) The interests of the beneficiaries must be vested and indefeasible.
[2] Donovan W.M Waters,Q.C., Mark R. Gillen, & Lionel D.Smith, Water's Law of trusts in Canada, 4th ed. (Toronto, Carswell, 2012) at 1235-1256
[3] Charities Accounting Act, R.S.O. 1990, c. C10, section 13 of the Act allows parties to obtain a court order on the consent of the Public Guardian and Trustee for matters such as varying the objects of the charitable trust or expanding investment powers where no discretion is provided in the trust deed.
[4]  Variation of Trusts Act , R.S.O.1990,c.V.1(the "Act")
[5] Ibid, at section 1.(1) (a),(b),(c) &(d)
[6] Supra note 6, at section 2.
[7] Mark Gillen, Law of Trusts, 3rd ed, Ch7 (Variation of Trust Legislation), 7-13
[8] Mark Gillen, Law of Trusts, 3rd ed, Ch7 (Variation of Trust Legislation), 7-16
[9]  Re Irving  (1975),11O.R.(2d)443(H.C)
[10]  Finnell v. Schumacher Estate 74O.R.(2d)58(Ont. C.A.),199CANLII 6766(ONCA) ("Schumacher Estate"), Primo Poloniato Grandchildren's Trust (Trustee of) v. Browne,[2012]O.J.NO.5772(C.A.), 2012ONCA 86 2(CANLII
[11]  Mark Gillen, Law of Trusts, 3rd ed, Ch7 (Variation of Trust Legislation), 7-17
[12]  Schumacher Estate, ibid
[13]  The court recognized a benefit to children in the form of increased wealth in their parents' hands in Ridalls v. Co-operative Trust Co. of Canada (1983), 24 Sask. R. 16, 14 E.T.R. 157 (Sask. Q.B.); Re Kovish (1985), 18 E.T.R. 133 (B.C. S.C.); Re Henderson Estate (1991), 77 Man. R. (2d) 91 (Man. Q.B.); and May v. May (1994), (sub nom. May v. May Estate), 96 Man. R. (2d) 268, [1995] 1 W.W.R. 70 (Man. Q.B.) (although in the last case there was also significant life insurance). Cases in which the court has denied approval due to the absence of a more tangible benefit for the next generation include Kunater v. Royal Trust Corp. of Canada (1980), 23 B.C.L.R. 287(B.C. S.C.); Re Nathanson (1981), 45 N.S.R. (2d) 151, 9 E.T.R. 256 (N.S. T.D.); Salt v. Alberta (Public Trustee) (1986), 45 Alta. L.R. (2d) 331, 23 E.T.R. 225 (Alta. Q.B.); and Samoil v. Buob Estate (1999), 86 Alta. L.R. (3d) 250, [2001] 2 W.W.R. 280 (Alta. Q.B.) (even though the Public Trustee did not oppose). In Canada Permanent Trust Co. v. Assie (1985), (sub nom. Re Assie),42 Sask. R. 262, 24 E.T.R. 278 (Sask. Q.B.), the judge rejected the application as failing to show any tangible benefit for the contingent beneficiaries, expressing a concern that applications should not be granted as of course. The application was modified and renewed (1985), 45 Sask. R. 142, but it was refused again.
[14]  Re Zekelman [1971] 3 OR 156 (HC)
[15] Lafortune v. Lafortune Estate (1990), 40 E.T.R. 299 (Ont. H.C.)
[16] William Innes and Joel T. Cuperfain " Variations of Trusts: An analysis of the Effects of Variations of Trusts Under the Provisions of the Income Tax Act" found at: https://www.ctf.ca/ctfweb/Documents/PDF/1995ctj/1995CTJ1_Innes.pdf

V. UPCOMING EVENTS
Note: Due to the Covid-19 Pandemic many upcoming events are being cancelled, rescheduled or moved on-line.  Please check the event info links for the latest information from the event organizers.
 
Law Society of Ontario, Practice Gems: Administration of Estates 2020
September 21, 2020
Chairs: Kimberly Whaley &  Jag Gandhi
 
CBA Professional Development
I do, do I? Capacity to Marry and Divorce Over Time
October 6, 2020
Speaker: Kimberly Whaley
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
October 9, 2020
Speakers: Mike Marra and Matthew Rendely
   
GTAAN/FTAFN Accountants Network
Trusts & Estates For Financial Professionals
October 20, 2020
Speakers: WEL firm members

Ontario Bar Association, Elder Law Section Program
Your Comprehensive Guide to Section 3 Counsel Under the Substitute Decisions Act
October 20, 2020
Chairs: Kimberly Whaley and Alex Procope
 
Estate Planning and Litigation Forum
November 11-13, 2020
Montreal, PQ
 
STEP Global Special Interest Group (SIG) Annual Conference
Digital Assets
December 4, 2020
Speaker: Kimberly Whaley
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 11, 2020    
Speakers: Daniel Paperny and Bryan Gilmartin

Toronto Lawyers Association
Serious Illness Decision Making
January 28, 2021
Speaker: Kimberly Whaley
 
International Federation of Ageing-15th Global Conference on Ageing
Niagara Falls, March 3-5, 2021
Speakers: Daniel Paperny and Matthew Rendely    

Osgoode Professional Development
Passing of Fiduciary Accounts
April 6, 2021
Chair: Kimberly Whaley

LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30-May 3, 2021
Decisional Capacity: A Wills & Estates Context
Speakers: Kimberly Whale, John Poyser & Professor Albert Oosterhoff

Law Society of Ontario, 15th Solo and Small Firm Conference
The Solo/Small Advantage
June 10, 2021
Speaker: Kimberly Whaley  
https://store.lso.ca/15th-solo-and-small-firm-conference-the-solosmall-advantage

VI. IN CASE YOU MISSED IT - RECENT BLOG POSTS
Kirst Estate: How long is 'Awhile'?

A Note on Applications to Pass Accounts During COVID-19 in Toronto

Enforcing Settlements and Settler's Remorse

Time to Revist the Role of Counsel: Alsawwah v. Afifi

CBA Call to Action for the Protection of Seniors in Canada

Canadian Bar Association Submission to the Minister of Seniors

Financial and Consumer Services Commission of NB Elder Abuse Campaign

IFA Virtual Town Hall | COVID-19 and Older People: Preventing and Protecting Against Elder Abuse During a Pandemic

Seeing a Lawyer is Not an Inoculation Against Undue Influence

The Usefulness of a Validating Power

Statutory Wills

Electronic Wills

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