WEL Newsletter, Vol. 9, No. 12, March 2020
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Winter can be dark and, well, quite frankly, it can wear on you by this time of the year. And of course now, since having first written this note, we also have Covid-19.... Anxiety levels are high... And so, just when you are commiserating over the fact that, "the world is a stage and the play is badly cast" (Oscar Wilde) - don't give up hope - there is reason enough to celebrate, after all, it's St. Patrick's Day. Happy St. Patrick's Day! - even if  you are celebrating as a party of 1!
 
Though St. Patrick's Day is not a holiday in Ontario like it is in some jurisdictions, it is however, a day to celebrate all things Irish. It started as a religious celebration in the 17th century to commemorate the life of Saint Patrick and the arrival of Christianity in Ireland. This "Feast Day," as it has also been referred to, always took place on the anniversary of Patrick's death, which was believed to be March 17, 461 AD. On St. Patrick's Day some dress in green, drink green beer, eat green food, or shamrock jellies, go to parades to see Leprechauns, dream of living in castles' on green hillsides, sing, dance and generally be silly! The Irish shout out sayings such as, Gaelic Éirinn go Brách, which roughly translates as "Ireland Forever." .....say that 10 times quickly!!!
 
According to Irish tradition, if you are lucky enough to find a four-leaf clover, you are destined for good luck since each leaf of the clover symbolizes one of faith, hope, love, and luck for the finder. Your odds of finding a four-leaf clover however, are about 1 in 10,000. Have you found one?
 
Wherever you are this St. Patrick's Day-join in on some fun and remember: "Luck is believing you're lucky" - Tennessee Williams (oops not Irish!).
 
On a more serious note, please know that our office is open for business. Some of us are working remotely, but we are working and getting the job done on every file and we welcome all new files.. Our office has taken all precautions as directed by the Public Health Agency of Canada.
 
As ever, enjoy the read, stay safe and be well,
 
Kim


 

I. WEL NEWS
1. LAW TIMES, FEBRUARY 10, 2020
 
Kimberly Whaley's article, 'Equitable Doctrine Back before Ontario Court after More than a Century' was published by the Lawyers Daily on February 10, 2020. 
 
2. ONTARIO BAR ASSOCIATION, CAPACITY FOR LAWYERS: ELDER AND REAL ESTATE MATTERS
 
On February 26, 2020 Matthew Rendely spoke along with Lawrence Enfield from Enfield Wood LLP at the Ontario Bar Association's Capacity for Lawyers: Elder and Real Estate Matters CPD program.  The program was chaired by Amelia Yiu from Elm Law.
 
3. WEL PARTNERS ON ELDER LAW, MARCH 2020
 
WEL Partners is pleased to announce our new resource book on Elder Law has finally arrived in print.
 
Through team effort, WEL has compiled a resource tool on this broad topic, which provides an overview of elder abuse, covering topics such as ageism and the need for protection against; decisional capacity; undue influence; powers of attorney/guardianship for property and personal care; fiduciary duties and obligations; predatory marriages; privacy law, disclosure obligations/limitations; professionalism and ethics.
 
If you wish to receive a print copy please contact Blossom: blossom@welpartners.com.
 
You can download the pdf of this book:

 
Visit our website at http://welpartners.com/resources/publications to view our other published books .


II. WEL SHOUTOUTS
WEL Partners congratulates Ian Hull, of Hull & Hull LLP, our friend and colleague on the great achievement and honour of being one of this year's chosen recipients of the OBA Distinguished Service Award which will be presented on April 15th. Link to event info
  
Congratulations to Ian on receiving this deserved recognition from your colleagues and friends at the bar and on the bench. It is impossible to consider estate litigation and not also think of Rodney and Ian Hull - their names synonymous with this practice area. Both respected and both considered to be amongst the top litigators in Canada. Ian litigates, mediates, advocates, writes, blogs, stars in academy award style podcasts, teaches, runs a practice, is a mentor, and in his extra time is a dad of 3, a husband, a brother, a son, a friend to many - and managing to juggle all these roles with spectacular finesse and have some fun along the way!
 
WEL also extends warmest congratulations to fellow 2020 recipients of the OBA Distinguished Service Award, Michel W. Drapeau, Drapeau Law Office; Audrey Ramsay, Blouin, Dunn LLP, and, Reuben M. Rosenblatt, Minden Gross LLP.

III. BOOK REVIEWS
MIKE MARRA'S HOLIDAY READS
By Mike Marra
 
Kim Whaley's "Christmas Read List" from the January Newsletter inspired me to revisit the books that I had read during the holiday period. To be fair, at this stage of my life I read constantly in my spare time. The following are the books that I read over the period from roughly December 15 to January 15.
 
In the Dream House by Carmen Maria Machado (2019). The author's memoir of domestic violence in a same sex relationship. As a long time family law lawyer and mediator this account brings home the chilling reality of psychological and emotional abuse. The new Divorce Act amendments contain an expanded definition of intimate partner violence, including, "coercive and controlling violence: a pattern of emotionally abusive intimidation, coercion and control, often combined with physical violence."
 
The new definition is a big step forward but the evidentiary challenges facing the victim are obvious. In the Dream House the onset of the abusive behaviour was subtle and seemingly out of character. As it continued the victim questioned whether it had actually happened or was in her own head all the while believing and feeling that her partner was the love of her life and the relationship was amazing. Until it finally became clear that it wasn't.  

Blanket Toss Under the Midnight Sun by Paul Seesequasis (2019). I encountered the author online where he features archival photos of indigenous folks in northern or prairie communities.  He began to search archives in response to his mother's stories and accounts of life in the communities and his own review of the Truth and Reconciliation Commission Report on the residential school system.  
 
He began to post the photos on FaceBook and Twitter and generated a large following who were able to identify relatives and dates and places in the photos. In his book, Seesequasis provides a historical narrative of the eight primary indigenous areas in what is now known as Canada, as depicted by many photographers who assembled thousands of candid pictures taken within the communities as far back as the 1940's.  
 
This is not a depiction of devastation, despair and misery. It is a celebration of resilience and joy.
 
Harry Potter and the Philosopher's Stone . My seven year old granddaughter is obsessed by all things Hogwarts. She has just finished reading the fifth book. So in order to have some clue about what she is talking about I suggested that I would like to read the first book. As an early Christmas present she provided me with a well-used copy with the note "I hope that you enjoy this book as much as I did."   I did. I get it. Now if only I could learn to properly pronounce the name of her hero Hermione Granger.
 
The Underground Railroad by Colson Whitehead (2016). Last summer I was fortunate to attend Whitehead's launch of his 2019 novel The Nickel Boys at the AGO. That led me to his 2017 Pulitzer Prize and 2016 National Book Award winning The Underground Railroad. No one can begin to understand the African-American point of view without really appreciating these types of accounts. At times these stories are too much to bear. Then you recognize that these stories are based on real life archives and pieced together as unforgettable fiction.   
 
Hello Please Fix Me I Want to Die by Anna Mahler Paperny (2019). Unlike Kim, I am only half way through. I watched Anna's interview with Steve Paiken on TVO and was struck by her courage, candor and depth of knowledge. Her first person accounts and research are equally compelling and heavy going. As a parent of many and with direct experience with our mental health care system I have some appreciation of the desperation, feelings of helplessness and hope so vividly described. 
 
The Border by Don Winslow (1919). The third installment in the Cartel Trilogy is a page turner that kept me going through the heart of the Christmas break. Picking up with our hero (or anti-hero) Art Keller in 2012 and following him as he becomes head of the DEA in the past Democratic Administration and forward to the 2016 Republican President who bears a not  dissimilar resemblance to Trump. The book details how the Mexican Cartel adapted their business model from marijuana to cheap brown heroin and lab manufactured fentanyl in response to the emerging legalization of weed and explosion of pharma opioids in the US market.   
 
After watching the Senate Impeachment Fiasco and the daily abrogation of the rule of law in America, I long for the honour, integrity and courage of one person who can stand up and make a difference like Arturo Keller.
 
Seven Fallen Feathers by Tanya Talaga (2018). Former Toronto Star reporter Tanya Talaga received numerous accolades and awards for her detailed chronical of the tragic deaths of seven indigenous high schoolers in Thunder Bay between 2000 and 2011. Systematic racism of our indigenous people is part of our Canadian identity and these accounts highlight just how entrenched the colonial status quo is in our society.
 
Oranges Are Not the Only Fruit by Jeannette Winterson (1985). The first novel by the acclaimed British writer describing her coming of age in a strict Pentecostal household and community in Lancashire in the early '70's. A remarkable story of perseverance and courage as the writer is ostracized from her community and church due to her sexuality all the while immersing herself in literature and mysticism.
 
On Earth We're Briefly Gorgeous by Ocean Vuong (2019). An immigrant's experience captured by way of an adult's letter to his mother chronicling his experiences as a Vietnamese refugee in the '70's growing up with his mother and grandmother in Hartford, Connecticut. Our writer, "Little Dog", begins at age five, unable to speak any English while being raised in a home where only Vietnamese was spoken. You can well imagine the difficulties that he experienced in school and with peers growing up in the hard scrabble inner city. I will never look at a nail salon the same way after reading Little Dog's accounts of spending every day after school and weekends within the toxicity of the salon while his mother worked long hours for tips to support the household. 
 
I also watched Pain & Glory, Uncut Gems, Queen & Slim, Little Women and Parasite on the big screen. Good times.

IV. LAW REVIEW
SPOUSE VS. COMMON LAW SPOUSE - A CONSTITUTIONAL QUESTION
By Bryan Gilmartin
 
Introduction

In Jackson Estate v. Young, 2020 NSSC 5, The Supreme Court of Nova Scotia was tasked with determining whether the exclusion of common law spouses from Nova Scotia's Intestate Succession Act, RSNS 1989, c. 236 (the "Act") constituted an infringement of section 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter").
 
Facts
 
Judith Marie Jackson ("Judy") died intestate on August 26, 2017. At the time of her death, she was in a common law relationship with William Young ("Bill"). Judy had two daughters from her previous marriage - Laura Kelly and Sarah Barnes (collectively referred to as the "daughters").
 
The relationship between Judy and Bill began in or around 2004. Several years later Bill moved into Judy's home located at 327 Craig Road (the "Property"). Though Judy and Bill were engaged to be married in 2009, no wedding ever took place.
 
Following Judy's death, the daughters applied for and were issued a grant of administration of Judy's estate. Accordingly, the Property was transferred to the daughters as personal representatives of Judy's estate. The daughters asked Bill to vacate the Property on numerous occasions but he refused to leave.
 
The daughters filed an application seeking, amongst other things, an order requiring Bill to vacate the Property. Bill filed a notice of contest and a notice of respondent's claim taking the position that he was a "spouse" for the purposes of the Act and was therefore entitled to inherit Judy's property. In the alternative, Bill took the position that the exclusion of common law spouses under the Act infringed s. 15(1) of the Charter.
 
Statutory Interpretation
 
Upon a thorough application of the modern principle of statutory interpretation, it was determined that the purpose of the Act is to provide a standard system of distribution of the estate of a person who dies without a will, based on the presumed intention of the intestate. Furthermore, the purpose of the surviving spouse's preferential share is to prevent a surviving spouse from being left in poverty following the death of their husband and wife.
 
With respect to the meaning of "spouse" as it coincides with the Act, the court determined that the legislature intended for the word to refer to an individual who was legally married to the intestate and that the legislative history of the Act allowed for no other conclusion.
 
Is the Exclusion of Common Law Spouses Unconstitutional?
 
Relying on Quebec v. A, the parties agreed that the exclusion of common law spouses from the definition of "spouse" under the Act violated s. 15(1) of the Charter. Specifically, the court stated that the Act denies unmarried spouses the right to inherit from a spouse who dies intestate - a right that is available to married spouses. On that basis, the court held that the law creates a distinction based upon the analogous ground of marital status.
 
Section 1 Analysis
 
The question of whether the infringement of Bill's rights under s. 15(1) was justified under section 1 of the Charter, was examined through application ofthe Oakes test. The Estate postured and the court agreed that the intended objective of the Act was to preserve choice and individual autonomy. Furthermore, the court held the distinction made between married and common law spouses was rationally connected to the objective of preserving the autonomy and freedom of choice of spouses.
 
With respect to minimal impairment, though the court acknowledged other conceivable alternatives that would impair Bill's s. 15(1) rights to a lesser degree, it was determined that they would not be as effective in promoting the goals of maximizing choice and autonomy. The court noted numerous other circumstances where a common law spouse could be granted rights to property, such as, inter vivos gifts or conveyance of title.
 
With respect to the proportionality analysis, the court acknowledged the potentially severe impact the Act poses on common law spouses like Bill, who may be left economically vulnerable or disadvantaged following the death of a partner. However, the court ultimately held that in light of the Supreme Court of Canada's findings in Quebec v. A, the violation of s. 15(1) in this case was justified under s.1.
 
Conclusion
 
With the increasing prevalence of common law relationships, one must wonder how long it will take for this absence of statutorily imposed rights for common law spouses to tip the scales in favour of those who the law fails to recognize because they are not in "legally married" relationships.
 
For now, this decision, at the very least, should reinforce for those in common law relationships, to make sure they have a proper estate plan.

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.
 
Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Corporate Client Matters
March 18, 2020
Speaker: Kimberly Whaley
 https://www.cbapd.org/details_en.aspx?id=on_on20eld02t

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
March 27, 2020
Speaker: Matthew Rendely and Bryan Gilmartin

Osgoode Professional Development
Passing of Accounts & Fiduciary Accounting
April 7, 2020
Chair: Kimberly Whaley
Speaker: Professor Albert Oosterhoof, Tracey Phinnemore

Cambridge Forum, Estate Planning and Litigation Forum
Elder Abuse - Civil and Criminal Remedies
Speaker: Kimberly Whaley
April 26-28, 2020

Osgoode Professional Development
The Osgoode Intensive Program in Wills and Estates - Powers of Attorney and Guardianship: Non-contentious and Contentious Matters
April 28, 2020
Speaker: Kimberly Whaley

Legal Education Society of Alberta: 53rd Annual Refresher: Wills & Estates (Lake Louise)
Capacity Tests for Various Judicial Acts
May 2-4, 2020
Speaker: Kimberly Whaley

Law Society of Ontario, The Six-Minute Estates Lawyer 2020
Raiders of the Lost Will, Proving Due Execution
May 12, 2020             
Speaker: Kimberly Whaley
 
Osgoode Professional Development, The Osgoode Certificate in Elder Law  2020
Long Term Care Homes, Retirement Homes, and Community Based Services & Homecare: Navigating the System, Understanding the Legal Rules
May 13, 2020

Ontario Bar Association, Elder Law Section Program
Your Comprehensive Guide to Section 3 Counsel Under the Substitute Decisions Act
May 14, 2020
Chairs: Kimberly Whaley and Alex Procope
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
May 15, 2020
Speaker: Lua Ebrahimi and Henry Howe

B'Nai Brith
June 2, 2020
Cross-Border Estate Issues
Participant: Kimberly Whaley
 
Law Society of Ontario, 15th Solo and Small Firm Conference
The Solo/Small Advantage
June 10, 2020
Speaker: Kimberly Whaley

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
October 9, 2020
Speaker: Mike Marra and Matthew Rendely
 
GTA Accountants Network
Trust and Estates For Financial Professionals
October 20, 2020
Speakers: WEL Firm members

International Federation of Ageing-15th Global Conference on Ageing

Niagara Falls

November 1-3, 2020

 
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
Speaker: Daniel Paperny and Bryan Gilmartin

VI. IN CASE YOU MISSED IT - RECENT BLOG POSTS
Women in Law Summit: February 12, 2020

OBA Elder Law Program: Rights and Limitations on an Attorney Under a Power Of Attorney (Archived Video Stream)

Celebrate Black History Month: Remembering Justice George Ethelbert Carter

Memory: The 'Grand Criterion' in Determining Testamentary Capacity in Re: From Estate

The Kobe Bryant Estate: A 'Mamba Mentality' Towards a Comprehensive Estate Plan

Are You Certain You Will Be Granted Leave to Require an Attorney to Pass Accounts?

Does Estate Law's Treatment of Contemporary Relationships Need a Refresh?

Locus of Title in an Unadministered Estate Redux

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