WEL Newsletter Vol. 10, No. 6, September 2020
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Happy September! Until next time beautiful Summer ............ and hello colourful Autumn!
 
September brings with it almost the same feelings that January brings in that though it is not the beginning of a new year, it feels like it because so many activities reconvene in Fall. Schools and Universities get underway, committees and board meetings that suspend for summer break, start up again, and, in some communities it is the celebration of a new year - Shana tova!
 
This fall we have the added concern of the world pandemic and as we are trying to restart our economies and usual routines, and embrace our new season, we also have to deal with set-backs. We need to continue to work together to keep all of our communities safe. Wear your masks, wash your hands, socially distance, have respect for others, even if you do not want to do any of these things, do them for the good of others around you who may have unknown, unseen, and silent vulnerabilities.
 
It is disheartening to hear stories of disputes, violence and unrest over wearing a mask. Keep perspective and focus on the end goal! Exercise patience. This too shall pass!
 
Finally, and importantly, because September brings new beginnings, I am pleased to share with you our new beginnings, and announce that Matthew Rendely and Daniel Paperny have been elevated to partnership. Our team is proud to share these new beginnings together.
 
Enjoy the Read,
 
Kim

I. WEL NEWS

1. WEL PARTNERS IS PLEASED TO ANNOUNCE NEW PARTNERS

 
WEL PARTNERS is pleased to announce Matthew Rendely and Daniel Paperny, are now Partners.  Both Matthew and Daniel are dedicated, compassionate lawyers who work hard for our clients.
 
Matthew joined WEL in June 2018. Daniel joined WEL shortly after, in September 2018.  As individuals, and as part of the WEL team, they quickly established themselves as competent lawyers, well liked by our clients.
 
We congratulate both and feel fortunate to continue with their shared appreciation of our firm's goals and objectives.

WEL Partners website: Daniel Paperny - Matthew Rendely

2. LSO, PRACTICE GEMS: ADMINISTRATION OF ESTATES 2020

 
Kimberly Whaley and Jag Gandhi co-chaired the LSO, Practice Gems: Administration of Estates 2020, webinar, on September 21, 2020.
 

3. LSO, LAWYERS FEED THE HUNGRY, SEPTEMBER 22, 2020

 
WEL were proud to sponsor LSO - Lawyers Feed the Hungry this month. Due to the pandemic, meals were provided on a takeout basis to the community in need.

4. OBA, ELDER LAW/TRUSTS AND ESTATES LAW, SECTION 3 COUNSEL UNDER THE SDA, OCTOBER 26, 2020

 
Kimberly Whaley and Alex Procope are chairing this very important and much-needed program on Section 3 counsel under the Substitute Decisions Act on October 26, 2020.  Please join us.
 
https://www.cbapd.org/details_en.aspx?id=ON_ON20ELD05X
5. LAWYER ALERT! ONTARIO LIMITATION PERIODS RESUMED SEPTEMBER 14, 2020
 
By an Emergency Order dated March 20, the Ontario government suspended the running of most provincial limitation periods and procedural time periods retroactively to March 16 due to the COVID-19 emergency. This Emergency Order was revoked on September 14, 2020.
 
Limitation periods started to run again on September 14, 2020, with the same deadlines as there had been on March 16, 2020. For example: if on March 16, 2020, when the limitation periods were suspended and a claim had to be commenced within five days before it would be statute-barred, on September 14, 2020, the same deadline of five days would have to be met.
 
To read more about the province's previously lifted limitation period suspensions, federal limitation periods, and tips to meet limitation periods and deadlines, LawPro has posted an article which can be found at the below link:
 
https://www.practicepro.ca/2020/08/lawpro-alert-ontario-limitation-periods-and-procedural-time-periods-resume-september-14-2020/
6. 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.

II. SHOUT OUTS
15th ANNUAL STEP PRIVATE CLIENT AWARDS FINALISTS ANNOUNCED
 
WEL congratulates the finalists of the 15th Annual STEP Private Client Awards and look forward to the results.  https://pca.step.org/Finalists  
 
McMILLAN LLP - VANTAGE UPDATES: COVID-19
     
WEL commends and thanks McMillan for their unfailing, timely and resourceful updates, designed to keep us informed and to get us through COVID-19 with meaningful information that effects us daily. 
 
A dedicated team at McMillan (including Tim Murphy, Melanie Paradis, and Tessa Seager) has been working hard to provide regular email updates during the COVID-19 pandemic.  They have spent their days "doomscrolling" through press releases, news reports, government updates and ever-changing statistics and numbers, on global, national, provincial and local levels.  Then, the information is distilled into concise summaries with links, quotes, photos, and an occasional well-placed sense of humour, all for our reading pleasure - or relief, as the case may be. We at WEL are sincerely grateful for these updates, as they satisfy the need for news while reducing the stress of reading every bit of COVID info out there - decidedly a mental-health-saver. To be added to the mailing list, send a message to info@mcmillanvantage.com.  

III. LAW REVIEW
(i) CASE COMMENT - MAGNOTTA V MAGNOTTA
By Daniel Paperny

Magnotta v Magnotta,
 
What constitutes a "Financial Interest" in an Estate for the purpose of Rule 75.03? When is it appropriate to file a Notice of Objection? Who has administrative priority in the event of an Intestacy? How does it effect funeral arrangements; where a deceased's remains are interred; and other administrative concerns?

Madam Justice Dietrich's January 2020 decision in Magnotta v Magnotta provides judicial clarity on these points and sheds some light on the 'Who-What-When-Where-Why-and-How' of estate administration law.

Background

The deceased, Joseph Magnotta ("Joseph"), sadly passed away at the young age of 36, unexpectedly from cancer. Given his young age and the sudden nature of his death, Joseph died intestate, without a will. He was predeceased by his father and survived by his wife of 6 years, Melissa Magnotta ("Melissa"), and his mother, Rosanna Magnotta (Rosanna"). He had no children/issue. 

Melissa and Joseph were high school sweethearts, they had been married for 6 years and had been together as "life partners" for 15 years before Joseph's tragic passing.

As Joseph's surviving spouse, and since Joseph had no children, Melissa was the sole heir of Joseph's estate (the "Estate") pursuant to the rules of intestacy.

Family Feud

After Joseph's funeral and his interment in the Magnotta Family Crypt, a feud erupted between Joseph's widow, Melissa, and his mother, Rosanna, regarding the costs of the funeral, and Rosanna's perception that Melissa intended to exhume Joseph's remains from the Magnotta Family Crypt.

Following the funeral, when Melissa had discovered that, when she died, she would not be interred in the Magnotta Family Crypt (which was owned by Rosanna and Joseph's sister) she inquired with the funeral home about exhuming Joseph's remains and moving them to another cemetery so that she and Joseph might be interred together. Melissa was told that she would have to speak directly with the cemetery to discuss this, however, she never did reach out to the cemetery to address this.

When Rosanna caught wind that Melissa was inquiring about removing Joseph's remains from the Magnotta Family Crypt, conflict erupted between Melissa and her mother-in-law which spilled into the Estate Administration process.

Application and Objection

Melissa made an Application for a Certificate of Appointment of Estate Trustee without a Will in Joseph's Estate. Melissa's Application contained a statement that all of the Estate's debts had been satisfied. Rosanna filed a Form 75.1 Notice of Objection to a Certificate issuing to Melissa. In the Notice of Objection, Rosanna indicated that she had a financial interest in the Estate because she had paid approximately $45,000 in funeral expenses for Joseph which were not repaid by the Estate.

In correspondence between the parties' lawyers, Rosanna's counsel indicated that she would seek the appointment of a third-party estate trustee in light of the perceived threat that Melissa would exhume Joseph's remains. At cross-examinations, Rosanna learned that Melissa had given sworn evidence that she did not intend to exhume Joseph's remains. However, Rosanna still refused to withdraw her Notice of Objection and testified that Melissa should not be appointed as Estate Trustee because Melissa had arranged for an article to run in City Life Magazine about Melissa and Joseph as a couple.  Rosanna did not approve of the article because she found it disrespectful to Joseph and his privacy.

Positions of the Parties

Melissa sought an Order setting aside Rosanna's Objection and an Order appointing Melissa as the Estate Trustee without the need for an administration bond.

Initially, Rosanna sought the appointment of a third-party neutral estate trustee and objected to the appointment of Melissa. However, after multiple hours of argument during the Application hearing, Rosanna advised she would withdraw her Objection and allow a Certificate to issue to Melissa. However, Rosanna sought her costs of the Application, payable by Melissa or the Estate.

Ruling

Justice Dietrich ordered that Rosanna was not entitled to any costs in the application; a Certificate of Appointment should issue to Melissa; and, Rosanna was to pay Melissa's costs of the Application in the amount of $20,000.

In determining whether to award costs, Justice Dietrich considered whether the conduct of the parties, specifically Rosanna's conduct in filing her Objection, had been reasonable.

Section 29(1) of the Estates Act[1] sets out that, in the event of an intestacy, the Deceased's surviving spouse and next-of-kin both have equal right to apply to be Estate Trustee. This means that if Rosanna and Melissa had both applied for a Certificate of Appointment, a court would have to determine in its discretion who is most appropriate in the circumstances, as the legislation does not prioritize between a spouse and next-of-kin in this regard.

However, in this case, since Joseph died intestate, without issue, Melissa as his surviving spouse was entitled to his entire estate pursuant to section 44 of the Succession Law Reform Act.[2] In such circumstances, Justice Dietrich noted, unless it could be shown that Melissa was somehow in a conflict of interest, there could be no reasonable expectation that a court would award a Certificate of Appointment to anyone other than Melissa.

The Court cited a 2016 decision of Catto v McKay which confirmed that, where a deceased dies intestate leaving a surviving spouse and no issue, and the surviving spouse does not hold any adverse interest to the estate, "the surviving spouse is the person to whom the administration of the estate should be granted".[3]

Therefore, the court found that it was not reasonable for Rosanna to object to a Certificate issuing to Melissa because, as the sole intestate heir of the Estate, Melissa was the most appropriate person to be appointed.

It was further determined that Rosanna's objection on the grounds of the perceived threat that Melissa would exhume Joseph's remains was not reasonable either, since it was clear that (while Melissa had raised inquiries in this regard with the funeral home) she never contacted the cemetery and gave sworn evidence that it was not her intention to remove the remains.

Finally, the Court ruled that it was not reasonable for Rosanna to file a Notice of Objection under Rule 75.03(1) of the Rules of Civil Procedure[4] which reads:

(1) At any time before a certificate of appointment of estate trustee has been issued, any person who appears to have a financial interest in the estate may give notice of an objection by filing with the registrar or the Estate Registrar for Ontario a notice of objection (Form 75.1), signed by the person or the person's lawyer, stating the nature of the interest and of the objection.

Rosanna claimed that she had a financial interest in Joseph's Estate because she was owed $45,000 in funeral costs which she was not reimbursed for and was, therefore, a creditor of Joseph's Estate.

Justice Dietrich rejected this argument, citing another 2016 decision in Weidenfield v Weidenfield Estate[5] which held that a "person who appears to have a financial interest in the estate" is limited to beneficiaries under a deceased's will, beneficiaries under a prior will of the deceased or beneficiaries of the deceased on an intestacy. This does not include creditors. Dietrich notes in her decision that "Rule 75 is not intended to be used by creditors to secure recovery of assets within an estate", as this would complicate estate proceedings unnecessarily. 

The Court ordered that a Certificate of Appointment should issue to Melissa without the posting of an administration bond, and Rosanna was to pay Melissa's costs in the amount of $20,000, because it was not reasonable for Rosanna to file her Notice of Objection, as this hindered Melissa's legitimate Application for a Certificate.

Key Takeaways

The decision in Magnotta provides some valuable clarity on the Who-What-When-Where-Why-and-How of certain estate administration issues.  

Firstly, the case confirms that under s. 29 of the Estates Act in the event of an intestacy both the surviving spouse and next-of-kin have an equal right to apply for a Certificate of Appointment as Estate Trustee. And in cases where both a surviving spouse and next-of-kin have competing applications in this regard, a court will have to exercise its discretion to determine who is most appropriate to act in the circumstances.

However, in circumstances where the surviving spouse is the sole intestate heir, that person will almost always be the most appropriate for probate to be granted to. 

As was the case in both the Catto and Magnotta decisions, this finding could have an impact on funeral planning or control over the deceased's remains (a task which falls to the estate administrator) as the surviving spouse of an intestate deceased will have priority over the next-of-kin in this regard.

Secondly, Justice Dietrich's ruling in Magnotta provides valuable clarity on who is deemed to have a "financial interest" in an estate under Rule 75.03. This Rule can only be engaged by beneficiaries or potential beneficiaries of an estate and is not intended for creditors of an estate.

The case is also an important cautionary tale for those considering whether to file a Notice of Objection under Rule 75, as doing so without good reason or without standing (i.e. Without an apparent financial interest in an estate) can result in a cost award levied against the objector, as it did against Rosanna.

Finally, as with so many estate litigation cases, the case of Magnotta is another stark reminder of how important it is for us all to have estate plans and updated wills in place, no matter how young we are or how far-off death may seem. If Joseph had a will and an estate plan in place that set out how he wished to be buried/interred and who he wished to administer his estate, this legal battle between his spouse and his mother may have been avoided.


[1] Estates Act, R.S.O. 1990, c. E.21 
[2] Succession Law Reform Act, R.S.O. 1990, c. S.26 
[3] 2016 ONSC 3025
[4] Rules of Civil Procedure, R.R.O. 1990, Reg. 194
[5] 2016 ONSC 7330

(ii) PROCEDURAL TIMELINES IN COURT ORDERS: IS COVID-19 A  GET OUT OF JAIL FREE CARD? 
By Matthew Rendely
 
The civil justice system depends on parties complying with court orders, unless such orders are stayed, varied or successfully appealed. As such, the principle of judicial compliance is a constant theme echoed throughout many decisions.

Despite this principle, there are instances where a court can exercise discretion to provide relief to a party seeking to vary a direction in a court order. This discretion is afforded to courts to help to achieve a just, cost-effective and efficient determination of a matter. In particular, rules 1.04, 2.01, and 3.02 of the Rules of Civil Procedure[1] (the "Rules") are discretionary tools for courts to use to vary timelines in court orders.

At this time, the difficulties caused by COVID-19 for litigants to adhere to court-ordered timelines have highlighted the utility of these discretionary powers. Unfortunately, some litigants have attempted to use COVID-19 as a "get out of jail free card" to avoid complying with court-ordered timelines without any valid justification. This was just the case in Lima v Ventura (Estate of) [2] ("Ventura Estate").

In Ventura Estate, an applicant sought, amongst other things, an order to vary timelines set out in a court order with which he failed to comply. This order was sought on the basis that the applicant could not carry out his obligations under the court order due to the effects of COVID-19 on the housing market, government offices and banking institutions.

While the effects of COVID-19 are indeed real and pervasive, the decision in Ventura Estate demonstrates that this pandemic is by no means a free pass. In his decision, Emery J. explained the following about the court's willingness to use its discretionary powers to assist litigants who seek an extension due to COVID-19:

[29] That said, any motion to adjust timelines previously ordered by the court must be supported by persuasive evidence. The moving party must convince the court that his or her ability to perform obligations within those timelines has been frustrated or prevented for COVID-19 related reasons. The evidence must show that those reasons warrant a legitimate exemption from compliance with the order, and are not just an excuse.

[30]   In my view, a moving party seeking an extension in this context must demonstrate that an order to vary the timeline would be in the interest of justice, and would not cause undue prejudice to the opposite party. Factors to consider include:

a)   The steps not taken were necessary to carry out the terms of any order, and no other alternative to taking those steps would have served that purpose;
 
b)   The steps were not taken because of the moving party's inability to access business, professional or institutional offices physically or electronically because of COVID-19 protocols;
 
c)   An extension of time would not be contrary to any law, or the rights of other person under an order of any court;
 
d)   A reasonable explanation is provided for not taking the required steps, or why it was difficult or impossible to comply with the order for COVID-19 related reasons;
 
e)   The moving party has made best efforts to otherwise comply with the order, and all other terms of the order that were not impeded by the COVID-19 protocols have been met; and
 
f)     The moving party has acted in good faith.
 
Since a court's power to vary a timeline in an order is discretionary, this list is not exhaustive and ultimately, each case must be considered on its own facts and circumstances. Nevertheless, as reinforced in Ventura Estate, a plea to vary a court order is a decision that judges do not make lightly. As explained by Emery J., "Where a party seeks relief from complying with an order, by seeking an extension of time or otherwise, that party must essentially show cause why that relief should be granted."

Given the foregoing, counsel and parties alike may want to be aware of and carefully consider these enumerated factors, along with the Rules, before bringing a motion to vary a timeline in this era of COVID-19.


[1] Rules of Civil Procedure, R.R.O. 1990, Reg. 194
 
[2] 2020 ONSC 3278 (CanLII) http://canlii.ca/t/j8290

IV. 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.
 
CBA Professional Development
I do, do I? Capacity to Marry and Divorce Over Time
October 6, 2020
Speaker: Kimberly Whaley
 
LSO 23rd Estates and Trusts Summit (Day Two)
Errors on Probate Applications
October 8, 2020
Panelists: Kimberly Whaley, Ian Hull, & Dora Charalambous

York University - Osgoode Hall Law School
Lecture in Dr. Susan Drummond's Estates Class
Distinct Roles of Courts of Probate and Construction
October 8, 2020
Speaker: Professor Albert Oosterhoff
  
GTAAN/FTAFN Accountants Network
Trusts & Estates For Financial Professionals
October 20, 2020
Speakers: WEL Partners

Ontario Estates Forum, Virtual Forum
October 21-22, 2020
Litigation, Regulation and Estate Planning
Kimberly Whaley, Panel speaker
https://www.estatesforum.ca/

Speak to a Lawyer with Avi Charney - Podcast
Interview of Albert Oosterhoff
Distinct Roles of Courts of Probate and Construction
October 21, 2020
https://charneylegal.ca/feed/podcast

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
 
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

Estate Planning and Litigation Forum
April 18-20, 2021
Montreal, PQ

Osgoode Professional Development
Contentious Guardianship Applications and Removals of Attorneys and Guardians
April 27, 2021
Speaker: 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   


V. IN CASE YOU MISSED IT - RECENT BLOG POSTS
Movie Review - Knives Out: Hollywood & The World of Estate Planning/Litigation Collide

Health and Wellness Tips During Pandemic Times and Beyond

Kim's Summer Read: The Skin We're In - A Year of Black Resistance and Power By Desmond Cole

POA Weekly - Week 8: What are the duties and obligations of an Attorney for Personal Care and when do they arise?

The Uniform Benevolent and Community Crowdfunding Act

POA Weekly - Week 7: What is a Power of Attorney for Personal Care?

Invalid Trusts and Other Issues in Matrimonial Proceedings

Are Members (and Directors) of a Charitable Corporation Fiduciaries?

POA Weekly - Week 6: What is the Standard of Care Owed by an Attorney for Property?

POA Weekly - Week 5: Does an Attorney have an Obligation to Account?

What Information Must a Trustee Disclose to Beneficiaries?

Electronic Wills Encore: New BC Legislation

VI. CONNECT WITH WEL
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