WEL Newsletter, Vol. 10, No. 5, August 2020
 ,

Happy August! We are down to the last days of Summer - savour them! The Summer seems to be evaporating. Here is hoping we have a beautiful, and, colourful Fall ahead of us. We could all use a 'gimmee'! I hope you are holding up with perseverance and resilience. Tedious as it may be, it's all a matter of time until we move on from COVID. Stay safe until then.
 
Enjoy the Read,
 
Kim

I. WEL NEWS
1. BEST LAWYERS 2021
 
Kimberly Whaley and Albert Oosterhoff (Professor Emeritus UWO) have been selected by their peers for inclusion in the 15th Edition of The Best Lawyers in Canada for their work in Trusts and Estates.
 
2. IN CASE YOU MISSED IT - WEL PARTNERS VIDEO ON ELDER LAW

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.
3. PHASE 2 - THE MINISTRY OF THE ATTORNEY GENERAL'S INCREMENTAL PLAN TO PREPARE COURTHOUSES AND COURTROOMS TO FACILITATE THE RETURN TO FULL COURT OPERATIONS ACROSS ONTARIO
 
The Ministry of the Attorney General (MAG), which is responsible for court administration and courthouse facilities, established an incremental plan to prepare courthouses and courtrooms in an effort to facilitate the return to full court operations across Ontario. 
 
The first phase of this plan was implemented on Monday, July 6, 2020, in a limited number of courthouses and courtrooms. 
The Court operations will continue to expand with additional courthouses and courtrooms as the MAG continues to implement its plan, with a targeted completion date of November 1, 2020.[1]
 
The gradual reopening of courtrooms includes adherence to strict health and safety protocols to protect staff and everyone required to attend a courthouse from contracting and spreading COVID-19. Attendees are required to practice physical distancing and adhere to precautionary measures in place in the courthouse, including wearing a face covering. 
 
A COVID-19 Active Screening Protocol is currently in effect for all court participants. Attendees will be asked questions regarding recent travel, potential exposure to the virus, and whether they are experiencing any COVID-like symptoms. Answering the screening questions is a pre-requisite for all persons seeking to enter the courthouse, including ministry staff and justice sector partners.
 
The screening can be completed online at anytime/anyplace prior to arrival at the courthouse. The screening tools are also available for completion in paper-based format or verbally where required, at the courthouse.  Once you obtain a screening result, all visitors are required to present their screening result to designated entrance monitors as they enter the courthouse. Individuals who are deemed inadmissible through the screening process will be redirected to alternative processes.  

Links to the screening tool are available online at: 
 
        English: www.Ontario.ca/courtscreening
 
        French: www.Ontario.ca/depistagetribunaux
 
More information about the precautionary health and safety measures at courthouses implemented by the MAG is available on the following website:

 
The MAG Recovery Secretariat has also shared an update on the next phase of courthouse and courtroom reopening to in-person matters. 

Below is the proposed list which includes the number of courtrooms that will be prepared with appropriate precautionary measures, as well as the projected reopening dates. These locations and reopening dates continue to be subject to Judicial discretion.  As the MAG continues to prioritize the health and safety of its staff, stakeholders and the public, the reopening of these locations also remains subject to appropriate precautionary measures being in place.  

Municipality
Address
# of Courtrooms to be Reopened
Projected Reopening Date
CENTRAL EAST
 
 
 
Bracebridge
3 Dominion St N
4
14-Sep-20
Barrie (adding 1 courtroom)
75 Mulcaster
1
14-Sep-20
Cobourg
860 William St
4
14-Sep-20
Peterborough
70 - 110 Simcoe St
470 Water St
5
17-Aug-20
Newmarket
50 Eagle St W
5
14-Sep-20
Orillia
700 Memorial Ave. Cottage C
2
14-Sep-20
Oshawa (Durham)
150 Bond St
7
14-Sep-20

CENTRAL WEST
 
 
 
Brampton
7765 Hurontario St
5
14-Sep-20
Brampton
7755 Hurontario St
15
14-Sep-20
Burlington
2021 Plains Rd E
2
24-Aug-20
Cayuga
55 Munsee St
3
14-Sep-20
Hamilton
45 Main St E
55 Main St W
6
14-Sep-20
Simcoe
50 Frederick Hobson
5
14-Sep-20
St. Catherines
59 Church St
7
14-Sep-20
Welland
102 East Main St
3
14-Sep-20

EAST
 
 
 
Belleville
2
14-Sep-20
Brockville
41 Courthouse Sq
5
14-Sep-20
Cornwall
2
14-Sep-20
L'Original
1023 King St
59 Court St
4
14-Sep-20
Kingston
2
14-Sep-20
Napanee
97 Thomas St E
41 Dundas St W
3
14-Sep-20
Ottawa
161 Elgin St
7
Ongoing
Perth
43 Drummond St E
3
14-Sep-20
Picton
44 Union St
1
14-Sep-20

NORTH EAST
 
 
 
Cochrane
149 Fourth St
2
14-Sep-20
Gore Bay
27 Phipps St
2
14-Sep-20
Haileybury
393 Main St
2
14-Sep-20
Parry Sound
89 James St
3
14-Sep-20
Timmins
38 Pine St N
48 Spruce St N
5
17-Aug-20

NORTH WEST
 
 
 
Dryden
479 Government Rd
1
14-Sep-20
Fort Frances
333 Church St
2
14-Sep-20
Kenora
216 Water St
4
17-Aug-20

TORONTO
 
 
 
Toronto130 Queen St. (COA)
5
14-Sep-20
Toronto
3
14-Sep-20
Toronto
444 Yonge Street
2
14-Sep-20
Toronto
361 University Ave
6
14-Sep-20
Toronto
330 University Ave
6
14-Sep-20

WEST
 
 
 
Goderich
1 Courthouse Sq
3
14-Sep-20
Kitchener (Waterloo Region)
85 Frederick St
6
14-Sep-20
London
80 Dundas St
6
14-Sep-20
Stratford
100 St Patrick St
1 Huron St
5
14-Sep-20
Walkerton
207 Cayley St
3
14-Sep-20
Windsor
200 Chatham St E
245 Windsor St
5
14-Sep-20
Woodstock
415 Hunter St
5
14-Sep-20
4. REVISED COMMERCIAL / ESTATES LIST FILING DIRECTION - EFFECTIVE AUGUST 17, 2020

1.   Effective immediately, all proceedings that require any material to be filed to the court shall be filed by:
  • first, filing the materials through the Civil Submissions Online Portal; and
  • second, establishing a storage space on sync.com that is unique to the case, and uploading the materials there.
This process will replace sending materials to the judge and the Commercial/Estates List office by email.

Materials should be uploaded to the sync.com storage space only after they have been accepted for filing through the Civil Submissions Online portal:

2.   This will be a temporary measure until the court moves all files over to the new CaseLines system.

3.   As soon as the moving party uploads its motion record to the sync.com location, it shall provide a link to the storage space to all opposing parties so they can access the moving parties' material and upload their own.

4.   The sync.com site shall contain a separate folder for material filed by each participating party. Each folder will be labelled with the filing party's name only. Parties may upload material to their own folder only and may not alter any material uploaded by any other party.

5.   All documents other than factums shall be uploaded to the sync.com site in searchable PDF format. Factums shall be uploaded to the sync.com in WORD and PDF format.

6.   Earlier directions concerning the filing of electronic compendiums and hyperlinking factums continue to apply.

7.   The link should remain active until the judge's decision in the matter has been released.

8.   This process will take effect immediately for any matters with a hearing date on or after Monday, August 17, 2020. If you have already sent a judge materials in respect of a hearing on or after August 17, a site should be established on sync.com and be populated with materials that have already been delivered as well as any additional filings.

9.   The moving party will provide the judge hearing the matter and the Commercial/Estates List office with a link to the sync.com file site 48 hours before the hearing.
5. ERASSURE ESTATE RISK ASSURANCE - NEW RESOURCES FOR THE LEGAL PROFESSIONALS
 
Many legal professionals/financial advisors have heard or know of ERAssure Estate Risk Assurance, which offers liability insurance and protection for executors, including lawyers' acting as executors, by covering costs of defending a lawsuit and payment of damages awarded against an executor in the event of an error/negligence which results in a loss of value to estate assets.
 
ERAssure is now offering free estate administration resources that are helping legal professionals secure Executor Insurance to protect their clients and their practice.
 
One of the free services being offered includes an estate assessment, preparation and planning checklist, which assists an individual to find gaps in their will and close them. The assessment takes approximately 15 minutes to complete and is fairly comprehensive. After completing the assessment, you receive a personalized checklist which is a useful tool to correct any oversights in one's estate plan. We completed the assessment to understand how it works, and found it quite useful, it provided a to do list on the next steps to take to ensure that an estate plan is properly in place. A copy of the report can be sent to the individual's lawyer/financial planner, which can be a useful tool for them when advising a client on estate planning.
 
You can find all the free Estate Administration Resources being offered by ERAssure on their website by following this link.


II. HEALTH AND WELLNESS TIPS DURING PANDEMIC TIMES AND BEYOND
By Denise Mader (a.k.a Kim's trainer and firm yoga teacher)
Fitness, Yoga and Movement Coach - First Root Fitness
 

There are many health and wellness tips I could list off, all of which are useful, most of which you have probably heard before. Drink more water, get enough sleep, exercise daily, reduce stress with mindfulness practices, eat your veggies and protein and so on. It's always good to become educated and updated on what changes we can make to improve our lives but I'd like to take a look at the how, not the what.
 
At the best of times integrating new patterns can be difficult. Hello New Year's resolutions! Regardless of the circumstances, there are simple systems that will guarantee your success. It's not a magic wand, but if you stick with the system the healthy habit you've been meaning to integrate into your life with consistency will become as second nature as brushing your teeth. And just think about that. When we were kids we had to be told to brush our teeth. We didn't want to. Especially my younger brother Bruce. For a year he would go in the bathroom, run his toothbrush under the faucet and say he had brushed his teeth. My mom only discovered this after a dentist visit, many cavities, and a very large bill. But even little Bruce learned that the daily habit of brushing his teeth yielded positive results and the bit of effort was worthwhile. So pick that thing in your life that you want to improve, whether it's adding something like daily exercise or levelling up your training, or reducing something, such as screen time, alcohol, or unhealthy foods, and read on!
 
Whether it's personal or global, the one thing we can count on is change. There will always be cycles to our lives that either line up with what we want, or do not. One of the best ways to self soothe, adapt, and thrive during times of uncertainty, which is essentially all of the time as we never really know what the next moment holds, is to develop self awareness and practices that can help us ride the waves of life and embrace the challenges as an opportunity for growth. Just like building muscle, growth occurs when we are challenged beyond our current capacity. In strength training we methodically and gradually increase the stress on muscle fibres, causing very slight damage to them. During recovery the muscle repairs, builds, and we become stronger. Our systems are brilliant. With properly structured training we experience super compensation and our lean muscle mass increases so that our body is prepared to handle the imposed stress (those brilliant squats you did, for example) the next time you do them. Then we make the exercise more challenging and the process occurs over and over again. Before you know it you're squatting one and a half times your body weight, you're ridiculously strong and mobile, look and feel amazing, have pain free joints, increased energy and libido, and the mental fortitude of a ninja! The same applies to any challenge in life. The key is to develop self awareness and know what it is you need in order to recover from stress or to dig deep into untapped strength reserves.
 
Here are a few systems to help you deepen your self awareness, foster self compassion, and build some kick ass strength and resilience!
 
1. DEVELOP YOUR PERSONAL CHECK IN
 
Play around with what works best for you, but develop a personal check in practice and do it daily, preferably in the morning before you start your day. This can take many forms but the key is to tune in. It's like using google maps. You may know where you want to go but in order to find the best route, you've got to take stock of where you are starting. Then you'll be able to more effectively navigate your way to your goal. Even if it's only a of couple minutes, create the structure of consciously checking in with yourself. This might be a short meditation practice, finding a quiet space to sip your coffee and focus on your breathing, a writing/journalling practice, going for a walk around the block... feel out what is good and doable for you. Whatever it is, make sure it is designated as your personal check in time. Do not let other things hijack your practice and then when you're standing in line at Starbucks getting your morning brew think, "Ah crap, forgot to check in. I'll just do it now. That'll be good enough." That's like saying that chewing a piece of minty gum is a good substitute for thoroughly brushing and flossing your teeth. No dice! You can set aside five or ten minutes in the morning. Just do it. Figure out what you need in order to make that five minutes happen. Get up earlier, get off your phone, if you live with other people make a proclamation that you are not to be bothered when you're doing your thing, whatever that thing may be, to be quiet and tune in.

Personally, I've created a system that integrates a few different things I've learned and developed over the years. I begin with a five-minute meditation. Sitting upright I simply focus on the feeling on my breath moving in and out of my body. We desperately need to strengthen our focus. We practice distraction every single time our phones beep and we stop what we were doing to check the notification. Practice focussing. Even on the days you feel like you suck at focussing, do your practice. Notice your thoughts and feelings and come back to your breath. Like training a puppy, gently tug on the leash with firmness and love, and bring the puppy of your mind back into focus on the flow of your breath.
 
Next, I check in with my body, mind, and heart. I literally say "Good morning body." and I take stock of what I am feeling, what I notice. Then mind, and heart. This can be done very quickly and there is nothing to do, nothing to fix. You can simply name the things you notice and let them be. Bringing awareness to the raw materials of you and the state you're in is essential for determining what will best serve you that day. Maybe you're feeling anxious and need to prioritize some mini breaks throughout the day to help you stay calm and centred. Maybe you're feeling energized and it's a great day to have an intense workout and cross a bunch of errands off your list. You're the emperor of your life and you get to decide what your personal kingdom needs in order to have a great day. Then go forth and go with the flow. As Bruce Lee said:
 
"Be like water making its way through cracks. Do not be assertive, but adjust to the object, and you shall find a way around or through it. If nothing within you stays rigid, outward things will disclose themselves. Empty your mind, be formless. Shapeless, like water. If you put water into a cup, it becomes the cup. You put water into a bottle and it becomes the bottle. You put it in a teapot, it becomes the teapot. Now, water can flow or it can crash. Be water, my friend."
 
2. IMPLEMENTING CHANGE: STEPS TO SUCCESS
 
So you're rocking your morning check in and starting to notice that there are certain things in your life that aren't serving you or your health and wellness goals. Or perhaps you were already aware of something you want to add or reduce in your life but have been having trouble doing it consistently. Fantastic! You're aware of the thing that you are committed to transforming which is the most important step. Now, be specific. "I want to drink more water" or "I want to exercise every day" is pretty general. Make it specific. If you are living a fairly sedentary lifestyle that involves a lot of desk and couch action, pick a form of exercise that you enjoy and is super easy to do. I highly recommend walking. It's free, it's amazing for your health, and if you experience back pain a brisk walk while swinging your arms (from your shoulders, not your elbows) will do wonders. Don't take my word for it. This advice comes from back pain expert Dr. Stuart McGill. If you'd like to read more, check out his book Back Mechanic.
 
But back to you and your goal, whatever it may be. You've identified what you're going to do and you have made it specific. Now here is the hottest tip of all. Commit to incremental change. This was recently reinforced for me by Kevin Darby at DTS Fitness Education and it continues to work wonders for myself and my clients. Make your goal as EASY as possible to accomplish. If your goal is to walk for forty-five minutes every day, start with five. Heck, start with one! I'm serious. Go out for a brisk one-minute walk. Starting is the hardest part and chances are that if you walk for one minute you'll find yourself doing five because, what the heck, why not? You're already out there and it feels kind of good. Then the next week it's three minutes, then six, then ten. You get the idea. TINY changes CONSISTENTLY will win the race every time. It's the classic story of the tortoise and the hare. Build up your positive habits with tiny steps and you'll see results faster than if you sprint one day and crash the next.
 
Important note! You might not succeed every day. Especially when you're beginning to integrate a new practice into your life. Congratulations, you're totally normal! Here's the key. Celebrate your wins and commit to doing just a little bit better the next week. So if you got out for three walks in week one, great! That's three more than last week, which was zero! Notice what structures helped you achieve this, make any adjustments so that you can remove obstacles to your new healthy habit, and aim to do four walks in week two. A final note on incremental change. Try not to miss your awesome new healthy habit two days in a row. If you miss a day, commit to getting it done the next. Build momentum.
 
IN SUMMARY:
  • Do a daily personal check in.
  • Be specific with your goal.
  • Incremental change. Make it easy.
  • Celebrate your wins!
  • Adjust what you need to in order to do a little bit better the next week.
  • Try not to miss two days in a row. Momentum is a thing! Use it to your advantage.
  • Celebrate your wins again! Remember, if you fall off and mess up, yay! You're normal!
  • Start NOW. Not tomorrow. Not Monday. Today.
Remember, as you work out the kinks so that your new habit takes less and less effort to execute on a daily basis, you'll soon find yourself in a positive feedback loop where NOT doing the thing feels worse than the effort it takes to do it. Can you imagine going three days without brushing your teeth? No thanks, me neither. As you master one healthy change in your life, you'll be able to apply the system of incremental change to another and another and another. Make that small investment and watch the interest accumulate over time. Invest in yourself. You get one body in which to live this life. If you got one car to drive your whole life, would your run that beauty into the ground? Let it sit there rusting and just hope for the best? With consistency and expert guidance you can not only maintain, but upgrade your body every year. Get the most out of your journey and enjoy the ride!

For more information on Denise and coaching services: denisemader.com

III. MOVIE REVIEW - KNIVES OUT: HOLLYWOOD & THE WORLD OF ESTATE PLANNING / LITIGATION COLLIDE
By Daniel Paperny

(SPOILER ALERT: this article contains spoilers for the movie "Knives Out")
 
Featuring a highly dysfunctional family, a controversial estate plan, an untimely death and a contested "Death-Bed-Will", the 2019 Hollywood blockbuster movie, "Knives Out" has all the makings of a typical estate litigation file. 
 
The film, boasting a star-studded ensemble cast of Daniel Craig, Jamie Lee Curtis, Christopher Plummer and Chris Evans, portrays the comically flawed family of a renowned (and very wealthy) crime novelist, Harlan Thrombey. "Knives Out" is a fast-paced murder mystery that discusses hot-button estate litigation/planning issues including: Undue Influence, Incapacity, Dependants' Support, and a principal of inheritance law known as the "Slayer Rule". 
 
So, if you're a fan of high-drama-murder-mysteries and/or estates law, this movie is right up your alley. 
 
Plot
 
The film begins with the madness of the Thrombey family descending upon Harlan's palatial residence to celebrate the patriarch's 85th birthday. However, the morning after, Harlan is found dead, his throat slit, and each maladjusted family member becomes a prime suspect in Harlan's apparent murder. The film proceeds in the fashion of a witty and visually captivating 'whodunit' murder mystery, with plot twists at every turn. 
 
It turns out that Harlan was not actually murdered at all, but he rather committed the act himself after his young personal nurse and confidant, Marta, apparently administered Harlan a fatal dose of morphine by mistake. When Harlan and Marta discover Marta's apparent error, and realize that Harlan has only minutes left to live, Harlan slits his own throat to make his death seem like a suicide and to cover-up for his good friend, Marta. 
 
Days later, in a dramatic scene, Harlan's Last Will and Testament is read to the family by Harlan's will-drafting solicitor, and it is revealed that he has disinherited his entire family, and left his vast estate to, you guessed it, Marta, the Nurse. Needless to say, the shocked members of the Thrombey family are not happy: they all expected to be heirs of Harlan's Estate, but instead his wealth is passed entirely to his caretaker Marta, a stranger whom the family hardly knows. 
 
What ensues, alongside the murder mystery aspect of the film, are hilariously frantic attempts by various members of the Thrombey family to try to contest, challenge or vary Harlan's Will. 
 
Undue Influence
 
Initially, some family members accuse Marta of coercing or unduly influencing Harlan to make her the sole beneficiary of his Will, disinheriting the rest of the family. 
 
Undue influence is a common ground upon which a Will can be challenged, and occurs when a vulnerable testator/will-maker is influenced or coerced by a third party, to the extent that the volition (free-will) of the testator is vitiated, thereby invalidating the Will which was not made freely or independently by the testator. 
 
It is a common fact-pattern in estate litigation cases to see an acquaintance and/or caretaker of the deceased, such as Marta, benefitted by a deceased's Will and accused of undue influence. This is especially true in circumstances where the testator may be elderly or vulnerable, and the alleged perpetrator wields power or control over the testator, and is able to exercise influence or coercion to cause the testator to make a will benefitting the perpetrator. 
 
However, as Harlan's will-drafting solicitor points out to the Thrombey family in the movie, it can be very difficult to successfully argue undue influence. There must be convincing evidence to show that the perpetrator exerted influence over the testator which was so strong that it prevented the victim from exercising free-will when drafting the impugned Will. Sometimes, this evidence dies with the deceased who after all, is the primary witness to the undue influence. 
 
In "Knives Out", while it is suspicious (and very unfortunate for the Thrombeys) that Harlan changed his Will late in his life in favour of his caregiver, Marta, the family concludes that there is insufficient evidence to establish that the Will was invalid due to Marta's undue influence. 
 
The Slayer Rule 
 
With undue influence ruled out, the family turns to a little-known principal of inheritance law in their attempts to reclaim the Thrombey Empire from Marta. 
 
In a previous blogpost, I discussed what is commonly referred to as the "Slayer Rule" or the "Forfeiture Rule", which posits that a person who causes the death of another cannot benefit from the deceased's death. In other words, a prospective beneficiary of an Estate will be barred from inheriting from the Estate if they caused the death. 
 
This rule is well-established in Canadian jurisprudence (see the Supreme Court of Canada decision in: Oldfield v. Transamerica Life Insurance Co. Of Canada, 2002 SCC 22). 
 
In "Knives Out", when it becomes clear to the Thrombeys that they will not succeed on challenging Harlan's Will on the grounds of undue influence, they turn to the "Slayer Rule" for relief. The argument here is that Marta, by administering a fatal dose of morphine to Harlan, caused his death, and therefore cannot benefit from his death as the sole beneficiary of the Estate. 
 
This seems to be a convincing argument and a way for the Thrombeys to reclaim their entitlement to Harlan's Estate. However, in a last second plot-twist, it turns out that Marta did not actually give Harlan a fatal dose of morphine (a toxicology report reveals that she really gave him the correct medication out of a mislabeled bottle that had been tampered with by a vengeful family member), therefore she did not cause his death and the Slayer Rule could not apply and she is therefore deemed the sole rightful heir of Harlan's estate.
 
The movie ends with the Thrombey Family quarrelling amongst themselves while Marta looks down on them from the balcony of Harlan's mansion, which is now her own. 
 
Dependants' Support
 
While not discussed at length in the movie, the concept of Dependants' Support Claims is also relevant given the facts of "Knives Out". Prior to his death, Harlan was financially supporting many members of the Thrombey Family in one way or another. 
 
These individuals would appear to have legitimate claims that they were "dependants" of Harlan before he died, given that they were being supported by him financially immediately prior to his death.
 
It would appear that these individuals would have arguable claims for dependants' relief under Part V of the Succession Law Reform Act, which provides relief for dependants of a deceased who do not receive adequate provision under a deceased's Will. In "Knives Out" Harlan's dependants were cut out of his Will entirely, they did not receive any provision out of his Estate. 
 
Takeaway
 
From an estate litigation and planning perspective, the biggest lesson one should take from the movie, "Knives Out", is the crucial importance of communication when it comes to an estate plan. Communication with legal counsel, family members, and, with potential beneficiaries of an estate.
 
Many estate-related conflicts can be avoided if a will-maker, grantor of a gift, or grantor of a power of attorney discusses the estate-planning decisions in a clear and transparent manner with loved ones and family members. By communicating an estate plan in advance, and the rationale behind same, (and even better, by documenting those discussions) testators can potentially avoid conflict and/or litigation that could otherwise ensue down the road if these matters are not addressed before the testator dies or loses capacity.
 
Perhaps if Harlan had explained to his family the reasoning behind his estate-planning decision, and his wish to benefit Marta upon his death, the conflict and shock which unfolded after his Last Will and Testament was revealed to the family could have been avoided. 
 
While these morbid conversations are never easy to have, these are important conversations to have as they could allow the parties to address any problems or inequities arising from the estate plan before the testator dies or loses capacity. Holding these conversations in advance could serve to avoid even greater problems, including litigation and the associated time/cost of same, that might arise in the future. 
 
These issues can also be avoided by revisiting your estate plan regularly, reviewing it with the benefit of legal counsel and updating it as necessary. 

IV. KIM'S  SUMMER READ
THE SKIN WE'RE IN - A YEAR OF BLACK RESISTANCE AND POWER
BY DESMOND COLE

I read this book following my last read of  Black Like Me, by John Howard Griffin. Two different books, written in two different time periods, with different perspectives, and experiences by two different individuals of two different origins.
 
Towards the end of Black Like Me, Griffin writes, "In Black Like Me, I tried to establish one simple fact, which was to reveal the insanity of a situation where a man is judged by his skin color, by his philosophical accident-rather than by who he is in his humanity." Griffin also importantly wrote, "All human beings face the same fundamental problems of loving and of suffering, of striving toward human aspirations for themselves and their children, of simply being and inevitably dying. These are the basic truths in all people, the common denominators of all cultures and all races and all ethnic categories. In reality, the Us-and-Them or I-and-Thou dichotomies do not exist. There is only the universal We-one human family united by the capacity to feel compassion and to demand equal justice for all."
 
Black Like Me was published in 1961, by a man who dyed himself black for his purposes in discovering and revealing racial sufferings in the southern U.S.A.. The Skin We're In, was published in 2020 identifying racial inequalities and systemic issues in Canada. Both works focus on personal experiences and insights shared based on their own encounters and observations.
 
Desmond Cole is a journalist who chronicles 2017 in his identification of, and struggle with, racism in Canada with reflection on past and current events both homegrown and beyond. The journey is well written. It is insightful. It is personal. For me, I can best describe it, as wounding. By that I mean, the issues raised, the subject matter addressed is more manifest than I knew, or recognized, or understood.
 
As a nineteen year old student in Kingston, Desmond was stopped and questioned by white police for reasons that were not apparent. This happened dozens of times. He was afraid. He writes that as a child he resented his blackness because it made him feel powerless and scared. His experiences are real. His personal rendition of police violence is echoed by news stories world-wide.
 
While I cannot say that I fully understand and therefore am not able to fully contemplate the meaning of his use of the term, "white supremacy" and what he describes as "this white supremacist construct called Canada, where black people cannot win...". I can however say, that these experiences and observations on race related inequality have plagued the world for far too long.
 
What I would like to see is efforts and focus on the resolution. Let's work together to develop and implement a construct of change. 
 
Identification and acknowledgment of the problem has been consistent whether accepted by all, or not, whether acknowledged by all or not. It only takes enough people, not all people and surely to goodness we have enough people who want lasting change. We cannot change our history - we can change our future. We can take responsibility for our future. We can shape that construct. If the current construct developed from a long history of racial inequality, bias and systematic inequality, and the goal is true equality with equal access and treatment and removal of systematic bias then let's figure it out. As a lawyer, I try every day of my career to find ways to solve problems, to develop strategies, to fix issues, remedy problems, change things for the better for individuals and families and systems........the challenge in the fight for equality for everyone is to figure out a protocol to fix these issues and in turn to implement and carry out the plan.
 
Desmond Cole writes in criticism of the construct in Canada, "Canada says "look how far we've come" without defining who "we" is, how we've arrived where we are, and from where we came, and in what condition we've arrived. Canada is a phantom train that God sent chugging up an endless hill. We never say progress means settler colonialism, means racial capitalism - that's obvious and so gauche to mention out loud. And we have lots of language to describe difference: multiculturalism, diversity, our cultural mosaic. My favourite word is "inclusive," as in, "Canada is an inclusive country." Inclusion requires the power to exclude. If Canada gives up its right to exclude, to decide who belongs here and who doesn't, it ceases to exist. And Canada has found a way to exclude both the racialized and Indigenous peoples who were here millennia before white European settlers."
 
It's true that this terminology of diversity is used, now, more than in the past. The words, I would conclude are reflective of an attempt to recognize and acknowledge errors of the past and provide for a different course in our future. The words may be over-used, misused, and not genuinely - used. That is true. The words some say, are just words and are meaningless without action. The words that need to be acted on, are equality and equal access to justice.
 
I am really very fortunate to have read these books and learned from the experiences described. I am fortunate, to have accepted the opportunity to learn through others and to see through their eyes how they are affected. I don't feel good about the read. I am left feeling powerless to remedy the situation as if it is bigger than all of us - but, that cannot be true, so I choose to turn that feeling around to empowerment. I will try my best in every situation to ensure that I support positive change.
 
Without reading Desmond Cole's book, I would not have truly understood the magnitude of his suffering in the country I live in - I will say I was surprised by the extent of his suffering. I have not been exposed to the types of treatment Desmond Cole has, perhaps because I am white, or, perhaps because I am a woman, or perhaps because of any number of other extraneous contributors. I want to be a part of a positive and effective change in our future and I compel my colleagues, many of whom are privileged advocates to do the same.
 
Thank you for your book Desmond Cole. I hope that Desmond Cole focuses some of his obvious talents in helping us all to come up with a plan for positive systemic change that balances the pendulum in equality and humanity for every single person.

V. SHOUT OUTS
OBA ELDER LAW SECTION
 
WEL Congratulations Matthew Rendely on being elected to the OBA Elder Law Section Executive Committee as CPD Liaison for the OBA 2020-2021 year.  Mathew assumed his role on July 1, 2020. Each OBA Section Executive is responsible for facilitating learning, advocacy and networking on behalf of the area of law.
 
OBA SOLE SMALL FIRM AND GENERAL PRACTICE SECTION
 
WEL Congratulates Daniel Paperny on his appointment to the OBA Executive Committee as a Member-At-Large for the Sole Small Firm and General Practice Section.

VI. LAW REVIEW
(i) WHAT HAPPENS WHEN A PARENT TRANSFERS REAL PROPERTY TO AN ADULT CHILD IN JOINT TENANCY ?
By Sareh Lua Ebrahimi
 
Kent v. Kent, 2020 ONCA 390[1] http://canlii.ca/t/j89th
 
In this case, the question before the Ontario Court of Appeal was: what happens when a parent transfers real property to their adult child in joint tenancy, and following the transfer, the child and her husband occupy the property for a lengthy period? The Court of Appeal had to determine how to reconcile the rebuttable presumption of a resulting trust in favour of a parent who gratuitously transfers a property to an adult child, having regard to  the Supreme Court of Canada decision in Pecore v. Pecore,[2] and the provisions of the Family Law Act ("FLA"), namely, sections 18 and 26 (1).[3]

Facts of the case[4]

In 1983, Marian bought a property (the "Property") and was the sole owner. In September 1996, Marian transferred title from herself alone, to herself and her adult daughter, Janice, as joint tenants for nominal consideration. However, Marian continued to live at the property alone.

At the time of the 1996 Transfer, Marian had a will dated July 24, 1978 (the "1978 Will"). Under the terms of the 1978 Will, Janice was the beneficiary; if Janice predeceased Marian, Janice's issue alive at Marian's death were the beneficiaries; and, if Janice predeceased Marian and had no issue alive at the time of Marian's death, Gordon (Janice's husband) would be the beneficiary.

In 2008, Janice, Gordon and their two children moved in with Marian. Janice died in 2014, and named Gordon the beneficiary of her estate. Gordon continued to reside with Marian on the Property after Janice's death.

In 2015, Marian moved into a long-term care home, and continued to pay for all of the costs and expenses of the Property until she died in 2016. Marian also made a new will in 2015 (the "2015 Will"). In terms of the 2015 Will, Marian named her grandchildren as the executors and trustees and she bequeathed her Property to Gordon and to her grandchildren in equal shares. Marian also registered a survivorship application on title to the Property in her name alone. She then registered a transfer deed to the Property in which she conveyed the Property to herself, her grandchildren, and Gordon as joint tenants.

At no time did Janice or Gordon pay rent while living on the Property.  

After Marian's death, Gordon brought an application for a declaration that he owned a two-thirds share of the Property. The Respondents (the grandchildren and Marian's Estate) opposed the Application.

Applicant's position[5]

Gordon maintained that when he and Janice moved in with Marian, the Property became their matrimonial home and it was their matrimonial home at the time of Janice's death. He argued that based on section 26(1) of the FLA, the joint tenancy in the Property was deemed to have been severed immediately before Janice's death with the result that, as the beneficiary under Janice's will, he became a one-half owner of the Property with Marian as tenants-in-common.  After Marian's death, based on her 2015 Will, Gordon argued that he became entitled to an additional one-third share of Marian's one-half interest in the Property. Hence, he claimed to be entitled to a two-thirds interest in the Property.

Respondent's position[6]

The Respondents argued that the 1996 Transfer raised the presumption of resulting trust, therefore, Janice did not have a beneficial interest in the Property, and therefore,  26(1) of the FLA did not apply, and Marian's 2015 Will operated to give each of Gordon, and the grandchildren a one-third interest in the Property.

The application's judge agreed with the Respondent's position, that there was a resulting trust in favour of Marian, and found that there was no evidence to rebut the presumption. The application judge determined that section 26(1) of the FLA does not apply since Janice did not have a beneficial interest in the property and only held title in her capacity as trustee in favour of Marian.[7] Therefore, her legal interest could not be transferred to her estate and thereafter to Gordon, pursuant to the terms of her will.

Issues to be determined by the Appeal Court:
  1. Whether the 1996 transfer was a gift to Janice and whether the application's judge erred in his finding;
  2. If the 1996 transfer did raise the presumption of resulting trust, Marian's 1978 Will in which she named Janice as her residuary beneficiary rebuts the presumption of the resulting trust; and
  3. Marian, by allowing Janice, an owner by joint tenancy and her family to move into the property, created a "matrimonial home circumstance" and therefore section 26(1) of the FLA is applicable.
The Court of Appeal analyzed each of the questions, facts and evidence submitted by the parties in the application and determined that the application Judge was correct to determine that the transfer by Marian to Janice in 1996 was a gratuitous transfer and that there was no evidence to rebut the presumption. Notably, the 1978 Will was created prior to the 1996 transfer, and therefore, could not be used as evidence to show that Marian gifted the property to Janice.

In considering whether the property was a matrimonial home of Janice and Gordon, the Court of Appeal reviewed section 18(1) of the FLA to determine whether Janice had an interest in the Property. Section 18(1) of the FLA states:

"Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home."

The Court of Appeal determined that Janice did not have an interest in the property. Janice became a joint tenant as a result of the 1996 transfer, which raised the presumption of resulting trust, which presumption was not rebutted.

The Court of Appeal decided that Janice held title to the property as a trustee and not in her beneficial capacity. The Court cited the case of Spencer v. Riesberry, wherein it stated:

"it is self-evident that the duties and powers of a trustee are not an interest in the property within the meaning of s. 18(1) of the FLA because those powers and duties are held not in a personal capacity but in the fiduciary role of a trustee."[8]

The Court of Appeal went on to state that Gordon did not have an interest in the property within the meaning of section18 of the FLA and rejected Gordon's submission that section 26(1) of the FLA applied.
The court stated the following:
 
"It is correct that when Janice died, she appeared on title to the Property as a joint tenant with Marian, a third person. However, as I have just explained, as Janice was on title to the Property in the capacity of a trustee, she did not have an interest in the Property within the meaning of s. 18(1) of the FLA. Thus, when Janice died, she did not own an interest in a matrimonial home as a joint tenant with Marian, a third person. Consequently, s. 26(1) does not apply and Gordon cannot claim an interest in the Property pursuant to it."[9]
 
The Appeal was dismissed.


[1] Kent v. Kent, 2020 ONCA 390 (CanLII) found at: http://canlii.ca/t/j89th
[2] Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 SCR 795
[3] Family Law Act, RSO 1990, c F.3
Matrimonial home
18 (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. 
Joint tenancy with third person
26 (1) If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.
[4] Kent v. Kent, 2020 ONCA 390 (CanLII), at para 3-16
[5] Kent v. Kent, 2020 ONCA 390 (CanLII), at para 17
[6] Kent v. Kent, 2020 ONCA 390 (CanLII) at para 18
[7] Kent v. Kent, 2019 ONSC 6873 (CanLII), at paras 12-17
[8] Spencer v. Riesberry, 2012 ONCA 418, at para 45
[9] Kent v. Kent, 2020 ONCA 390, at para 48

VII. 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: 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 - Webinar
Your Comprehensive Guide to Section 3 Counsel Under the Substitute Decisions Act
October 26, 2020
Chairs and Speakers: Kimberly Whaley and Alex Procope
 
Estate Planning and Litigation Forum - Virtual
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
 
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

International Federation of Ageing-15th Global Conference on Ageing
November 10-12, 2021
Speakers: Daniel Paperny and Matthew Rendely   


VIII. IN CASE YOU MISSED IT - RECENT BLOG POSTS
Variation of Trusts

Coronavirus Exposes the Vulnerability of Seniors, Importance of Good Planning

To Recuse or Not to Recuse, That is the Question...

Active Screening at Courthouses for ALL Court Participants

Kimberly Whaley Top-ranked by Chambers in High Net Worth Private Wealth Disputes in Canada

Secret Trusts: Once More Unto the Breach

Varying a Charitable Trust of a Park

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