WEL Newsletter, Vol.8 No.4, July 2018



WEL Partners helps clients navigate dispute resolution throughout Ontario. We hope you enjoy our newsletter.
 
   


PART I: WEL NEWS

1. STEP TRUST QUARTERLY REVIEW, VOLUME 16, ISSUE 2, JUNE 2018

 
Kimberly's article: "Capacity to Reconcile: A New Legal Standard?" was published in the STEP Trust Quarterly Review, Volume 16, Issue 2, June 2018.
 
2. IFA 14th GLOBAL CONFERENCE, AUGUST 8-10, 2018
 
(a)   Kimberly, Andrea McEwan and Erin Cowling will be speaking at the IFA 14th Global Conference on Ageing, Master Class, on August 7, 2018.
 
Concepts of Ageism: Arguments in favour of the Need for Protections. Paper pending.
 
(b)  Kate Stephens, Alex Swabuk, Matthew Rendely, and Arieh Bloom

Elder Law and the Indian Act: Issues with Federal Oversight of First Nations     Wills, Estates, and Guardianship in Canada.

3. ADVOCATES QUARTERLY, AUGUST 2018

 
The article written by Kimberly Whaley and Kate Stephens: "A Lawyer's Duties and Obligations where Capacity, Undue Influence and Vulnerability are at Issue in a Retainer" will be published in the August 2018 issue of the Advocates Quarterly Journal.  

4, TORONTO LAWYERS ASSOCIATION, (TLA) YOUNG LAWYERS COMMITTEE, JUNE 2018

 
Alex Swabuk was selected to become a member of the Toronto Lawyers Association's Young Lawyers Committee for 2018. Congratulations to Alex.

5. SUPPORT RIGHTS AND OBLIGATIONS UNDER ONTARIO FAMILY LAW, BY ROBERT HALPERN

 
Kimberly contributed Chapter VI, Support on Death, in a publication edited by Robert Halpern, Support Rights and Obligations Under Ontario Family Law, Thomson Reuters, May 2018

6. OBA 2018-2019 ELDER LAW SECTION EXECUTIVE

 
Kim will be this coming year's Chair and she sends congratulations to Andrea McEwan and to our colleagues constituting the OBA 2018-2019 Elder Law Section Executive.

ELDER LAW SECTION EXECUTIVE 2018-2019
 
NAME
POSITION
Kim Whaley 
Chair 
Steven Benmor 
Past-Chair 
Lionel Tupman 
Vice-Chair 
Jane Martin 
Secretary 
Amelia Yok Hing Yiu 
CPD Liaison 
Amy MacAlpine 
CPD Liaison 
Katherine Batycky 
Newsletter Editor
Graham Webb  
Newsletter Editor
Lawrence Swartz 
Technology Liaison 
Rozmin Mediratta 
Public Affairs Liaison 
Harold Geller 
Regional Representative 
Heather Hogan 
Member at Large 
Diane Vieira 
Member at Large 
Angelique Moss 
Member at Large 
Heather Mountford 
Member at Large 
Elizabeth Bozek 
Member at Large 
Alex Procope 
Member at Large 
Andrea McEwan 
Member at Large 
Alexandra Manthorpe 
Member at Large 
Brittany Sud 
Member at Large 
Ray Leclair 
Member at Large 
Carla Whiller 
Member at Large 
Jennifer Corak 
Member at Large 
Kavina Nagrani 
Member at Large 
 

7. CBA NATIONAL ELDER LAW SECTION

 
Congrats to the new members and the officers of the CBA National Elder Law Section for 2018/2019
 
Effective September 1, 2018 , the CBA National Elder Law Section Officers will be:
 
Chair:            Graham Webb (Barrie, ON)
Vice-Chair:    Kavina Nagrani ( Toronto, ON )
Secretary:      Richard Coutinho ( Toronto, ON )
Past Chair:   Kimberly Whaley ( Toronto, ON )
 
Acclaimed Members-at-Large for 2018/2019:
  1. Allison Curley (Vancouver, BC)
  2. Donna Lynn Gee (Calgary, AB)
  3. Sarah MacKenzie
  4. Holly A. Doerksen (Ottawa, ON)
  5. Jaqua Page (New Westminister, BC)
  6. Sharon L. Tod (Winnipeg, MB)
  7. Catherine A. Blomquist (Moncton, NB)
  8. Jessica L. Lyle (Dartmouth, NS)
  9. Steven D. Benmor (Toronto, ON)
  10. Andrew K. Cudmore (Charlottetown PE)
  11. VĂ©ronique Morin (Montreal, QC)
  12. Jan M. King (Saskatoon, SK)
  13. Vincent J. De Angelis, LL.B., TEP (Markham, ON)
  14. Harold L. Geller (Ottawa, ON)
  15. Andrea Catherine McEwan (Toronto, ON)
  16. Heather Joan Mountford (Toronto, ON)
  17. Isabelle Nantais (Montreal, QC)
  18. Samuel E. Schwisberg (Ottawa, ON)
  19. Christopher J. Staples (Toronto, ON)
  20. Laura Tamblyn Watts (Toronto, ON)
  21. Lionel James Tupman (Toronto, ON)

8. WEL SUMMER STUDENT, BRYAN GILMARTIN

 
Bryan Gilmartin, our summer student, studying here at Windsor, has accepted an articling position with WEL for 2019-2020.
9. WEL, ASSOCIATE LAWYER, DANIEL PAPERNY
 
Daniel Paperny, an experienced Estate Litigator from BC will be joining WEL Professional Corporation as an Associate Lawyer, on September 10, 2018.
10. Baycrest Foundation, Professional Advisory Group, July 2018

Alex Swabuk was selected to become a member of the Baycrest Foundation Professional Advisory Group for 2018.  The Professional Advisory Group of the Baycrest Foundation aims to educate financial, legal and accounting professionals for the purpose of offering advice to their aging clients and families.
11. UPCOMING WHALEY/HULL WEBINAR SERIES: NAVIGATING YOUR RETAINER WHERE CLIENT CAPACITY IS AT ISSUE


 
Kimberly A. Whaley & Ian M. Hull jointly present a LIVE WEBINAR SERIES this fall.  REGISTRATION IS NOW OPEN.

Capacity considerations are a critically important aspect of a lawyer's practice, given our emerging social and demographic populations. This valuable live webcast will help you understand a lawyer's obligation, the rules upon which a lawyer's conduct will be examined, how to reconcile legislative and common law precedent, the legal abilities of attorneys and guardians, limitations on their powers, and the role of assessors and assessments. Join Ian Hull and Kimberly Whaley as they address the importance of capacity considerations in a lawyer's retainer.

Client Capacity in a Legal Retainer - SEPTEMBER 26

Client Capacity: A Corporate Lawyer's Retainer - OCTOBER 24

Client Capacity: A Real Estate Lawyer's Retainer -  NOVEMBER 28

Client Capacity: A Family Lawyer's Retainer  - DECEMBER 5

4:45 - 6:00 pm Live Webcast

$75 + HST per session

This program qualifies for 0.5 Professionalism Hours and up to 0.75 Substantive Hours of CPD.

More information and registration at: whaleyhullwebcasts.ca

PART II: LAW REVIEW
(i) EXTENSION OF THE LIMITATION PERIOD FOR A CLAIM FOR DEPENDANT SUPPORT:
HABBERFIELD V SCIAMONTE ET AL.
by Matthew Rendely

Habberfield v Sciamonte et al.,
2017 ONSC 4332 (CanLII), http://canlii.ca/t/h50xl
           
In Habberfield v. Sciamonte[1], the court summarized the principles that govern its discretion to allow an application for dependant support to be made following the expiration of the six-month limitation period under section 61 of Succession Law Reform Act. [2]

Section 61 of the SLRA

Subsection 61(1) of the SLRA defines the general rule for limitation periods for dependant support claims as six months from the grant of letters probate of the will or letters of administration.

Subsection 61(2) of the SLRA sets out the exception to the limitation period as one that is discretionary by the court. The section reads that, "The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application." [3]

Application of the Court's Discretion under Subsection 61(2) of the SLRA

Facts:

Donald Sciamonte (the "Deceased") died with a will on April 11, 2012. He was survived by the Applicant, Joan Habberfield, who was his common-law spouse of 31 years. A Certificate of Appointment of Estate Trustee with a Will was issued to the Respondents, the estate trustees of the Estate of Donald Sciamonte (the "Estate"), on October 30, 2012. The Applicant brought her claim for dependant support from the Estate after the expiration of the limitation period (i.e. six months after the grant of letters probate being April 30, 2013). Consequently, the Applicant was required to seek a grant of an extension of the limitation period under subsection 61(2) of the SLRA to bring her claim for dependant support.  

Pursuant to the terms of the Deceased will, two life trusts were established for the Applicant's support. She was also to receive a specific gift of $25,000.00. The first trust held the Deceased's home in Burlington, Ontario, which he had resided at with the Applicant. The second trust held an adjacent property to the Deceased's home, which he rented out as an income producing property. The terms of the trusts permitted to Applicant to occupy either of the properties and receive any rental income earned therefrom until the earlier of either:

(i)   the Applicant's death;
(ii)  the Applicant no longer being able to reside at either of the properties and requiring a nursing home;
(iii)  the Applicant advising the Respondents that she no longer wish to reside at either of the properties; or
(iv)  the Applicant marriage or cohabitation with another man.

At the earliest of these instances, the properties were to be sold and $50,000.00 from each property to be set aside and held in trust to provide for the Applicant's need as the Respondents, in their sole discretion, determine advisable. The balance of the proceeds are then to be divided between the Deceased's four children and six grandchildren. In the interim, the will provided that the Applicant was responsible for all taxes, insurance, repairs, mortgage interest and other charges or amounts necessary for the general upkeep of the two properties.

The only other financial assistance that the Deceased provided for the Applicant's support was the payment to her of the income earned on a RRIF in the approximate amount of $140,000.00 (approximately $1,200 to $1,450 per month to the Applicant). However, the RRIF was to be completely drawn down by the summer of 2017. This was in part because the Applicant was required to withdraw funds from it to fund renovations to the two properties held in trust, as those were her responsibilities under the terms of the will.

At the time of the hearing, the Applicant was 78 years old and had limited assets and income. Consequently, she was left with two problematic options:

(a)   if the Applicant stays in her own home she has no access to support and lacks sufficient income and assets to support herself; or
(b)  if the Applicant moves from the home into a seniors' or nursing home, or otherwise, the will provides her only $100,000.00, not outright but in a trust, and subject to the discretion of the Respondents with which to support herself for the rest of her life. [4]
 
Analysis:

The facts of this case are unlike those of most dependant support claims brought by a common-law spouse. In most of those scenarios, a common-law spouse will bring a dependant support claim because either: the deceased died intestate (i.e. as common-law spouses do not take on an intestacy under the SLRA) and the deceased didn't adequately provide for his/her common-law spouse's support by making testamentary dispositions of assets outside of the estate; or, the deceased died with a will which did not provide for the support of his/her common-law spouse adequately or at all.

In this case, not only was the Applicant provided for under the Deceased's will, but she received property outside of the Estate by way of a beneficiary designation (i.e. the income generated on the RRIF). Here in lay the reason for why the Applicant failed to bring her claim for dependant support within the prescribed six-month limitation period. The Applicant argued that at such time as the limitation period expired, she had not yet been required to consider whether her interest in the Estate was adequate for her future support. As such, she was not aware at the time that the limitation period expired of any rights that she had to protect with respect to her claim for support from the Estate. [5]

Justice Lofchik opened his reasons by declaring that subsection 61(2) of the SLRA provides the court with a "broad jurisdiction to extend the limitation period" with respect to any estate assets remaining undistributed at the time of an application. [6]   In considering the jurisprudence[7], his Honour noted that the following principles are to guide the court with respect to granting an extension under subsection 61(2) of the SLRA:

(a)  The Court has the discretion to allow the application to proceed at any time as to any portion of the estate remaining undistributed at the date of the application.
 
(b)  The discretion of the Court under section 61(2) to allow an application to proceed although it is brought after the time limit has expired under the SLRA must be exercised judicially, with consideration of the delay involved, the reasons for the delay, and the extent of prejudice in the Estate's defence of the claim.
 
(c)  The Court's discretion to extend the time limitation period under section 61(2) is to be exercised in a broad and liberal manner.
 
(d)  In deciding whether to grant the extension, the court must determine whether the situation bears review of whether or not the deceased made adequate provisions in his will for the proper maintenance and support of his dependants.
 
(e)  The question is not whether the Deceased has in fact done so, but whether there is a sufficient basis for review. This requires a consideration of what is equitable (in relation to the "proper" support of dependants as contemplated by the SLRA).
 
(f)  While delay (including the reason for delay) is a factor to consider, a request for an extension is not grounded solely in "good cause" being shown for the delay. The discretion to extend or refuse is a question of what is equitable between the parties, in all the circumstances.
 
(g)  In the absence of prejudice to the estate, equity tends to favour granting an extension:
 
The judge is thus given a discretion to be exercised on the principle of promoting justice between those interested in the estate. It is clear that he must refuse an application if the delay in applying would work an injustice. Further that it would seem that he must find that justice, in so far as the principle of the Act defines the kind of justice that the Legislature had in mind, requires that the application should be heard." [8]
 
Justice Lofchik further explained that while the general position of the court is not to restrain a person's right to dispose of his or her estate, the legislature imposed liberal authority upon the court through the SLRA to consider the intentions of a testator who may have overlooked a legitimate interest and need of a dependant. [9]

Conclusion:

In applying the court's jurisdiction to extend the limitation period, Justice Lofchik considered the Applicant's circumstances, which were that the terms of the Deceased's will left her with two problematic choices, both resulting in her inadequate support from the Estate. His Honour also considered that the need for the Applicant to make such decisions had only recently become apparent to her. Lastly, his Honour considered that the bulk of the Estate, being the two properties, remained undistributed, as they could not be sold and distributed until the Applicant died, moved, and/or desired to sell them.

Ultimately, Justice Lofchik found that although there had been a delay by the Applicant in bringing her claim for dependant support, there was no prejudice to the Estate or its beneficiaries due to such delay. Thus, his Honour granted the extension to the Applicant for her claim to be heard on its merits.
 
Takeaway:

This case explains that the court will broadly and liberally use its discretion under Part V of the Succession Law Reform Act to allow an applicant to bring a claim for dependant support as to any portion of the estate remaining undistributed at the date of the application. In applying its discretion, the court will liberally weigh all of the circumstances of the case to determine where the prejudice lies in extending the limitation period. As demonstrated in Habberfield, "in the absence of prejudice to the estate, equity tends to favour granting an extension."[10]


[1] Habberfield v. Sciamonte et al., 2017 ONSC 4332 ("Habberfield")
[2] Succession Law Reform Act, RSO 1990, c S 26 ("SLRA")
[3] Ibid at ss 61(2)
[4] Supra note 1at para 14
[5] Ibid at para 13
[6] Ibid at para 1
[7] Blatchford v. Blatchford Estate, [1999] OJ No 3748 (SCJ); Re Assaf, 2007 CanLII 50869 (SCJ); Weigand v. Weigand Estate, [2016] OJ No 5096 (SCJ)
[8] Supra note 1 at para 24
[9] Ibid at para 26
[10] Supra note 8
(ii) VESTING ORDERS AND GIFTS OF REAL PROPERTY UNDER A WILL: NOBREGA AND ELDER V. TRUSTEES OF THE ESTATE OF M. GASPAROVICH
by Kimberly Whaley

Nobrega and Elder v. Trustees of the Estate of M. Gasparovich, 2018 ONSC 2901, (CanLII), http://canlii.ca/t/hrzd6
 
The opening sentence of this case is: "Twenty years ago a mistake was made when settling the estate of Matthew Gasparovich". This case is an example of how one small mistake can lead to litigation and administrative issues years later when dealing with real property in estate planning.
 
The applicants, in this case, sought the division of three adjoining properties that had been merged into one at the time of purchase. The properties had been passed on to them by their late father as part of his estate. They made an application to the City of Toronto seeking the division, which was denied. They then brought this application to review the City's decision and obtain a Vesting Order from the Court.
 
The Court dismissed the application without prejudice to the applicants to bring a new application, on Notice to the City of Toronto, and with further information regarding the relief sought.
 
Background:
 
The testator, (the applicants' father) died in 1990. At the time of his death, he had three children, all of whom were named Estate Executors.

Many years prior to his death the testator had purchased three adjoining residential properties. While each property had a separate legal description, the titles for the subject properties were merged into one property under his name.

When the Estate was distributed the children wanted to separate the properties, but they were advised that the division was not permitted by the Planning Act.[1] The amendment to the Planning Act which would have prevented the division came into effect four months after the testator's death and as such would not have been applicable to his estate.

Based on the advice received, the properties were transferred to two of the siblings as tenants in common with a 33.75% and 66.43% interest respectively. The two siblings maintained the properties separately.

Having now reached a stage at which they were beginning their own estate planning, the siblings decided to apply for separation of the properties.

An application was made to the City of Toronto for a technical severance of the three properties. The application was denied as it did not satisfy certain requirements of the Planning Act.

The siblings then brought an application to the Court seeking a Vesting Order. The application before the Court did not include the written submissions made to the City, nor was the City put on notice of the application to the Court.
 
Analysis:

Citing Chippewas of Sarnia Band v. Canada (Attorney General), [2000] O.J. No. 4804 (C.A.), at para. 281, the Court notes that the power to grant a Vesting Order is both equitable and discretionary.

Importantly, in cases, such as this, where a Vesting Order might contravene the Planning Act, the Courts must use their discretion cautiously.

In light of the insufficient information available and the absence of a full understanding of the City's concerns, the Court was not prepared to grant the Order sought. The Application was therefore dismissed without prejudice to the applicants to bring a new application with further information and notice to the City.
 
Takeaways:
 
While Justice McArthur noted that the request of the applicants "to vest the properties in their names, in order to rectify the mistake made so many years ago, seems reasonable", Her Honour had insufficient evidence to exercise her discretion in this case.
 
Real property is often one of the gifts passed down to the next generation and legal advice ought to be obtained when real property forms part of an estate plan, especially if the intention is to leave the property to more than one beneficiary. In this case, one error regarding the interpretation of the Planning Act led the beneficiaries into administrative and legal proceedings several years later. .


[1] Planning Act, R.S.O. 1990, c. P.13

PART III: UPCOMING EVENTS
International Federal on Aging (IFA) 14th Global Conference on Ageing
August 7 - 10, 2018
Master Class - Concepts of Ageism: Arguments in favour of the need for protections
Kimberly Whaley, Andrea McEwan & Erin Cowling
 
Elder Law and the Indian Act: Issues with Federal Oversight of First Nations Wills, Estates, and Guardianship in Canada
Presenters: Matthew Rendely, Alex Swabuk, Arieh Bloom and Kate Stephens
 
LSUC - Administration of Estates and Probate Essentials
September 21, 2018
Chairs: Kimberly Whaley and Tim Grieve
 
WEL/Hull Webinar Series
Client Capacity in a Legal Retainer
September 26, 2018 - Info and registration

Client Capacity: A Corporate Lawyer's Retainer
October 24, 2018 - Info and registration

Client Capacity: A Real Estate Lawyer's Retainer
November 28, 2018 - Info and registration

Client Capacity: A Family Lawyer's Retainer
December 5, 2018 - Info and registration
 
Live Webcast presented by Ian Hull and Kimberly Whaley
4:45PM - 6:00PM (ET)
$75 + HST per session
This program qualifies for 0.5 Professionalism Hours and up to 0.75 Substantive Hours of CPD.

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
September 28, 2018    
Speakers: Andrea McEwan and Amanda Bettencourt
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 2, 2018        
Speakers: Kimberly Whaley and Alex Swabuk

PART IV: RECENT BLOG POSTS
IFA 2018 | 14th Global Conference on Ageing: Aug 7-10 Toronto

Elder Financial Fraud Results in Long-lasting Consequences: Dunn v. TD Waterhouse & Ridley Estate v. Eagan
 

Summary Judgment Not Always Appropriate with Allegations of Undue Influence & Suspicious Circumstances: Koster v. Koster

Toronto Public Health Forum on Elder Abuse in the Community, September 28th, 2018

Dementia and the Law

A Summary of the Ontario Security Commission's Senior Strategy

Public Appeals, by Albert Ooosterhoff

Republication of Wills: A Forgotten Doctrine?, by Albert Oosterhoff

PART V: CONNECT WITH WEL
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