Hello,
April encapsulates Spring, Passover, Ramadan, Easter, Flowers, Showers, the Masters, and this year-the Academy Awards too. BUT did you know?....... April is also National and International Poetry Month! Uh oh…….
Our lives once rich with activities and events
Now confined to working in our apartments,
Our smiles and frowns masked by cloak and by cloth
Wanting to burst free, to flit, to flutter like a butterfly or moth,
We lament over our struggle to thrive
Restricted by our drive to survive,
Adapt we will, persevere we shall
Soon all focus will be on boosting our morale!
So clearly, I am not a budding poet, however I had a fun moment attempting to entertain a sentiment. If you feel the need to share your April poetry, I am a willing victim. Happy April & May!
Enjoy the Read,
Kim
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1. GLC WOMXN IN LAW SERIES, PART 8, MARCH 22, 2021- SPEED MENTORING |
Kimberly Whaley was invited once again for the final session of the Global Lawyers of Canada (GLC): Womxn in Law series to participate in a speed mentoring evening with new lawyers. The panel consisted of Raquiya Austin of Ornge; Deepa Tailor of Tailor Law Professional Corporation; Susana Mijares, the Six Law Group; Siobhan Lennox, Northwest Law Group and Kimberly Whaley.
What a great evening with interesting stories from young ambitious lawyers and entrepreneurs!
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2. OSGOODE PROFESSIONAL DEVELOPMENT, PASSING OF FIDUCIARY ACCOUNTS, APRIL 6, 2021
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On April 6, 2021, Kimberly Whaley chaired the Osgoode Professional Development, Passing of Fiduciary Accounts evening this year with participants, Professor Albert Oosterhoff, Tracey Phinnemore, Ian Hull, Katherine Antonacopoulos (OCL) and Heather Hogan (PGT).
Professor Albert Oosterhoff presented his paper on: Compensation and Passing of Accounts-Link to article:
Tracey Phinnemore presented her paper on: Reviewing Accounts: What Lawyers Need to Look for – Tips & Traps-Link to article:
Our gratitude to Osgoode Professional Development, who made a kind donation to the Lawyers Feed the Hungry Program on behalf of the presenters.
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3. CBA WEBINAR, ELDER LAW, APRIL 8, 2021 – INTER-PROVINCIAL ISSUES REGARDING POWERS OF ATTORNEY
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On April 8, 2021, Kimberly Whaley, Graham Webb of ACE, Allison Katarey, Cuelenaere LLP, Saskatoon, and Tanya Butler, Touchstone Legal, Darmouth, N.S. presented on: “Inter-Provincial Issues regarding Powers of Attorney, Ontario/Quebec” at the CBA Law Series.
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4. OSGOODE CERTIFICATE IN ELDER LAW, APRIL 14, 2021
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On April 14, 2021, Professor Albert Oosterhoff chaired the Family Disputes Panel discussion at the Osgoode Certificate in Elder Law Program, on Common Elder Law Issues.
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5. OSGOODE CERTIFICATE IN ELDER LAW, APRIL 21, 2021
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On April 21, 2021, Kimberly Whaley co-presented with Clare Burns, on “Tackling Financial Abuse of Elders” at the Osgoode Certificate in Elder Law program.
A copy of the checklist : “Tackling Financial Abuse of Elders” can be accessed on our website:
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6. OSGOODE PROFESSIONAL DEVELOPMENT, EFFECTIVE CROSS-EXAMINATIONS, APRIL 21, 2021
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On April 21, 2021, Paul Murphy and Bryan Gilmartin had the pleasure of participating in the Advanced Questioning Techniques - Effective Cross Examinations program hosted by Osgoode Professional Development. Paul and Bryan were the witnesses in this learn-by-doing advanced skills workshop which provides participants with individualized feedback from the foremost Canadian instructors and Justices in advocacy skills training.
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7. OBA, ADR MENTORSHIP CIRCLE: BUILDING A SUCCESSFUL ADR PRACTICE, APRIL 22, 2021
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Kimberly Whaley co-participated with Suzana Popovich-Montag in a mentoring session to up-and-coming mediators in Trusts, Estates and Elder Law on April 22, 2021, on building a successful mediation practice. The program was chaired by Mana Khami, Harrison Pensa LLP, and, Bernard Morrow, Morrow Mediation. |
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8. CANADIAN LAWYER WEBINAR: THE TOP 10 THINGS ESTATE PROFESSIONALS SHOULD KNOW ABOUT DEATH AND CAPACITY
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Kimberly A. Whaley, WEL Partners, and Ian M. Hull, Hull & Hull LLP will be presenting a free webinar on: The Top 10 Things Estate Professionals Should Know About Death and Capacity, hosted by Canadian Lawyer Magazine on May 4, 2021 at 12:00 pm EDT.
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9. MONEY AND FAMILY LAW MAGAZINE, MARCH 2021
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Kimberly Whaley’s article: “Mediation, Confidentiality and Settlement Privilege” was published in Money & Family Law, March 2021, Issue 36-3.
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10. UPDATE ON THE ESTATES LIST AT TORONTO
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The Toronto Estates List is now using Caselines for all court filings and hearings. Listed below are the links to information about Caselines for your information:
Notice to the Profession re CaseLines:
CaseLines FAQs and videos:
Tips for Counsel and Self-Represented Parties:
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11. ONTARIO SUPERIOR COURT OF JUSTICE – UPDATE ON NOTICE TO PROFESSION AND PUBLIC REGARDING COURT PROCEEDINGS – COMMERCIAL LIST
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Notice to the Profession and Public Regarding Court Proceedings from Chief Justice Morawetz – April 20, 2021 UPDATE:
In view of the strengthened stay-at-home order and the critical situation with the pandemic, over the next several weeks until May 7, to reduce the number of court staff, counsel or parties required to leave their homes to participate in court proceedings, the Court will defer as many matters as possible. This includes virtual hearings.
The Court will focus on hearing
- the most serious child protection matters
- urgent family matters
- critical criminal matters, and
- urgent commercial or economic matters where there are employment or economic impacts.
Subject to the discretion of the trial judge, matters that are in-progress can continue. The positions of the parties and staff should be strongly considered and alternate arrangements should be made for those who do not wish to attend in-person.
The Court is seeking the cooperation of counsel to defer as much as possible.
Justice McEwen provided subsequent guidance to Commercial List Users on April 22, 2021:
In contrast to other branches of the Court, all matters currently coming before the Commercial and Estates List are proceeding virtually and almost all are proceeding without the need for Court staff to be physically present in the Court or its offices. Accordingly, and after consultation, Justice McEwen has confirmed that Estates List matters scheduled over the period contemplated by the Notice (until May 7) will generally proceed as scheduled and not be deferred.
Unless you are advised to the contrary by the Estates List Office, you should assume that any matters currently scheduled on the List will be proceeding as planned.
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12. CANADIAN SECURITIES ADMINISTRATORS’ NEWS
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The Canadian Securities Administrator is expecting final amendments to its initiatives to enhance the protection of older and vulnerable clients across Canada in early summer 2021, and to come into force on December 31, 2021, subject to all necessary approvals. The proposed amendments were developed together with the Investment Industry Regulatory Organization of Canada (IIROC) and the Mutual Fund Dealers Association of Canada (MFDA).
For information, please visit the OSC website:
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13. HAPPILY EVER OLDER, REVOLUTIONARY APPROACHES TO LONG-TERM CARE
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Moira Welsh is a local investigative journalist with the Toronto Star. I have spoken to Moira on several occasions over the years in her coverage of both local and national legal issues of public interest. Moira is an accomplished author and reporter having won several awards for her coverage of social justice issues in Canada. From my elder law work, I have seen several of Moira’s pieces on issues affecting our older adult population.
Moira’s writings canvas all sorts of inspirational ways for our older adults to be living during their older years and has done so through investigation of methods in several different jurisdictions in the Americas, Europe and beyond as well as within diversified cultures. Moira touches on policy, the need to adapt, affordability, as well as hospital over-crowding. Moira shares her personal experience with aging loved ones, some of which are all too familiar to me from my own experiences with family and with my clients.
Some of the human stories that Moira learned about she shares with us in a beautifully written, thoughtful way, reflective of the importance and impact on the members of the families involved, but also extraordinary in that the experiences read like an engaging novel. Moira manages to investigate options, strategies, and better ways for our seniors to live, while at the same time conveying solutions learned from medical experts, and others and all while telling individual stories as well as her own.
Moira touches on longevity, on advanced care needs, on dementia, Alzheimer’s disease, memory loss, cognitive decline, the critically ill, and more. She canvasses, yoga, theater, sing-alongs, music, games, courses, and human-interest involvement.
Moira also looked at the wonderful opportunities of day programs for family and for those with care needs. Her work highlights the dangers in the approach being simply the avoidance of risk.
This is a powerful look through a lens of humanity at providing positive approaches to care, which include respectful, appropriate options for our older population and servicing a variety of different needs, wants, desires, inclusivity, and the importance of freedom and living well.
The Toronto HomeShare Program is described and how Seniors’ Strategists including Dr. Sinha, Laura Tamblyn-Watts, Josh Matlow, Dr. Mirza, the folks at the NICE Network, and others, are helping to develop new ways, new designs for elder living options. Ryerson University released a report called, The Future Cost of Long-Term Care in Canada assisted by an actuary who I also met recently, albeit, virtually, Dr. Bonnie-Jeanne MacDonald who is the director of financial research at The National Institute on Ageing which is an amazing initiative.
Thank you, Moira, for this compassionate and eye-opening deeper look at both how we are failing our seniors and importantly how we can do better and succeed in improving the quality of life of our older adult population. This is a fantastic resource that should be read and distributed widely.
This book can be purchased online:
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14. WEL PARTNERS VIDEO ON ELDER LAW
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WEL PARTNERS ACADEMY AWARDS POOL |
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The pandemic has been a long slog for all of us and along the way we’ve all likely watched plenty of movies! In the spirit of having a little fun, we’re running a firm wide Academy Awards Contest and you're invited to participate.
Can you predict who will win an Oscar this year? Who will guess the most winners?
To participate, please download the entry form from our website, make your selections and return this to the email address indicated by 5:00 pm Sunday April 25, 2021. Our firm winner and guest winner will be honoured in our May Newsletter.
Here is how WEL sees the major categories:
BEST PICTURE
THE FATHER - 0%
JUDAS AND THE BLACK MESSIAH - 9%
MANK - 9%
MINARI - 0%
NOMADLAND - 45%
PROMISING YOUNG WOMAN - 9%
SOUND OF METAL - 9%
THE TRIAL OF THE CHICAGO 7 - 18%
DIRECTING
ANOTHER ROUND, Thomas Vinterberg - 0%
MANK, David Fincher - 18%
MINARI, Lee Isaac Chung - 9%
NOMADLAND, Chloé Zhao - 64%
PROMISING YOUNG WOMAN, Emerald Fennell - 9%
ACTRESS IN A LEADING ROLE
VIOLA DAVIS, Ma Rainey's Black Bottom - 45%
ANDRA DAY, The United States vs. Billie Holiday - 18%
VANESSA KIRBY, Pieces of a Woman - 0%
FRANCES MCDORMAND, Nomadland - 27%
CAREY MULLIGAN, Promising Young Woman - 9%
ACTOR IN A LEADING ROLE
RIZ AHMED, Sound of Metal - 9%
CHADWICK BOSEMAN, Ma Rainey's Black Bottom - 73%
ANTHONY HOPKINS, The Father - 18%
GARY OLDMAN, Mank - 0%
STEVEN YEUN, Minari - 0%
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WEL PARTNERS MASTERS POOL |
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WEL Partners teed off our first Masters Golf Pool this year organized by Paul Murphy. It was a great tournament won by Japan's Hideki Matsuyama and the pool was won coincidentally by Paul. Honourable mention went to the anonymous entry "I like big putts and I cannot lie" for their creative name!
Final results:
- Paul Murphy +2
- Bryan Gilmartin +4
- Ken Raymond +10
- Daniel Paperny +31
- Kim Whaley +33
- ProFake +34
- I like big putts and I cannot lie +36
- Spencer Walker +39
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CANADIAN LAW AWARDS, 2021 |
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WEL congratulates Suzana Popovic-Montag, Hull & Hull LLP, and Tom Curry, Lenczner Slaght Royce Smith Griffin LLP, on receiving the Managing Partner of the Year Award by Canadian Law Awards, as well as all the other winners, Anik Trudel- Lavery Lawyers, Dave Leonard -McCarthy Tétrault LLP, and, Mia Hempey-Nelligan O'Brien Payne.
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(i) ESTATES LIST: MOVING BEYOND
THE ‘NEW NORM’
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By Paul M. Murphy
On March 17, 2020, Ontario Premier Doug Ford declared a Provincial state of emergency, in order to try to contain the spread of the 2019 novel coronavirus (COVID-19). As of April 7, 2021, Ontarians find themselves in a third State of Emergency resulting from the issues and complications in combating COVID-19. We are now in a second stay-at-home Order as stress and fatigue continues to escalate within the Province.
It has been over one year since the Honourable Chief Justice Morawetz of the Superior Court of Justice (SCJ) issued a Notice to the Profession on March 15, 2020, focused on the protection and the health and safety of all Court users, including steps to contain the spread of COVID-19 within the Courts.
The March 15, 2020 the Notice to the Profession suspended all regular operations effective March 17, 2020. Following this suspension from the SCJ, there have been many changes and adaptations that our Commercial List and Estates List Courts have strived to overcome, all while in a very uncertain, and unprecedented environment. The efforts that the Courts have made given the resources at their disposal has been admirable and necessary to allow Ontarians to obtain safe and continued access to justice.
As a result of the March 15, 2020 Notice to the Profession, urgent matters on the Civil and Commercial List were heard on an ‘as needed’ basis, in circumstances where there was an immediate need, and where there were significant financial implications to parties. These hearings were mostly heard through videoconference or telephone, where strict time limits were imposed for oral submissions.
On March 16, 2020, Ontario suspended all limitation periods until further notice to ensure claimants were not prejudiced unjustly for not being able adhere to deadlines imposed by Ontario statutes. On September 14, 2020, the Government of Ontario announced that all limitation periods that were previously suspended were to be resumed.
For regular Court and Estates List matters, parties were encouraged to file their pleadings electronically through the Civil Claims Online Portal regarding Superior Court civil matters.[1] The Courts have found that there has been a significant increase in electronic filings and matters in writing over the past year.
Further updates from the SCJ were released on April 2, 2020 that sought to expand Court operations beyond urgent matters, as caseloads were continuing to mount in the SCJ. The Court needed to ensure access to judicial resources were available so as to maintain the effective administration of justice, which is consistent with its constitutional responsibility.[2] As a result, all matters were to be heard remotely. Underscoring these changes were increased responsibilities placed on parties and their lawyers to act in a cooperative and creative manner, while maintaining flexibility in order to obtain a timely, fair and just hearing for their clients.
The SCJ relied on the inherit jurisdiction entrenched in section 96 of the Constitution Act, 1867 and confirmed in section 11 (2) of the Courts of Justice Act in times of emergency.
The SCJ made it clear that these provisions should be used, “sparingly and with caution to relieve compliance with procedural rules, regulations, and statutes when it is:
- just or equitable to do so,
- reasonable or necessary to control the Court’s own process during this time of emergency,
- required to render justice between litigants,
- essential to prevent obstruction and abuse of the Court, or
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necessary to secure convenience, expeditiousness and efficiency in the administration of justice.”[3]
With the SCJ’s reliance on its’ inherit jurisdiction, Chief Justice Morawetz issued a Consolidated Notice to the Profession that placed an expectation on lawyers to take positive steps to move a case forward, including participation in virtual mediations, addressing etiquette during virtual hearings, and commissioning affidavits remotely.[4]
On August 17, 2020, the SCJ issued a filing direction for Commercial List and Estates List matters. As a result, all materials were to be filed on the Civil Submissions Online Portal and uploaded to sync.com as a temporary measure, until the Court moved all files to CaseLines [5].
On January 1, 2021, Ontario Regulation 689/20 came into force. This Regulation amended the Rules of Civil Procedure which formally allowed parties greater flexibility resulting from the COVID-19 pandemic, and government restrictions by permitting the use of electronic signatures, teleconference and videoconference hearings, electronic issuance of Court documents, electronic document sharing, remote commissioning, as well as other electronic processes[6]
On March 15, 2021, CaseLines was implemented on the Commercial List and Estates List, and has received mostly positive feedback from the legal community.[7] For example, when making oral submissions in Court through ZOOM, CaseLines has made the process more user friendly for counsel and judges to navigate through a document with several exhibits.
The CaseLines platform was designed to modernize and reduce the number of in-person court proceedings. The platform accepts large Court documents, and allows for counsel, judges and self represented parties efficient access and sharing features to be used at Court hearings and conferences. It should be noted that Caselines does not replace the filing of Court documents and does not constitute the Court Record, as Court documents must still be filed with the Court office in accordance with the Rules of Civil Procedure and Notices to the Profession.[8] Once counsel become more familiar with the CaseLines, it is presumed that it will lead to a more efficient process for hearings.
With respect to contested estates matters in the Toronto Region, effective March 9, 2021 the SCJ has amended its Consolidated Practice Direction to instruct users to use draft orders approved by the Estate List Users’ Committee.[9] These draft orders provide both the parties and the Court with greater clarity, predictability, and efficiency.
As the numbers of COVID-19 cases increase in Ontario, together with the COVID-19 variant illnesses, the Province issued a declaration of emergency and a Province wide stay-at-home order set to stay in place until May 6, 2021, at minimum. The Honourable Chief Justice Morawetz on April 8, 2021 released a Notice to the Profession and Public Regarding Court Proceedings, stating that “the Court will continue to hear as many matters as possible virtually.”
On April 20, 2021, the latest Notice to the Profession and Public Regarding Court Proceedings was released in response to the current State of Emergency informing legal professionals and the public that the Courts will be short staffed and will need to defer as many items as possible, including virtual hearings.[10]
Over the past year, Ontarians have been through a lot of change and subsequent adaptation to what we refer to as “the new norm.” The Courts are no different and have adapted to the current environment. Every citizen of Ontario has been forced to make changes not only within their immediate family, but also to their lifestyles, and work. The list of personal and professional changes continues to grow.
In the judiciary, the Courts have done their best to adapt and change to a model that allows people access to the Court in a safe manner. Gone are the days of the 9:30 Estates List appointments at the Toronto Courts waiting for your matter to be called to speak in chambers with opposing counsel and a judge for 10 minutes. The Courts are now, more than ever, moving toward a model that supports these changes, and benefits clients and the administration of justice.
Lawyers will no doubt miss the person to person contact and interaction with other friends, colleagues, and adversaries particularly as these parties wait for their appointments. However, the efficiency and cost saving measures that can be gained through speaking to these matters at the comfort of your office desk, kitchen, or family room, is only the start in a long overdue change to modernize our Courts and embrace the technology that continues to evolve. While we embrace the new technology, there are still intangible benefits to getting back to Court which cannot be replaced by technological innovation.
Even though we will surely be back in a courtroom for contested matters one day, it is essential that the Ontario Courts, continue to build upon the changes that have been implemented in 2020, and early 2021. Our Courts require more support and funding directed at technology that will allow the judiciary to build upon the momentum and growth that has been gained through the responses resulting from COVID-19.
There is no doubt we will get through this pandemic. Hopefully, the Courts will receive more government support to continue this growth and modernize, all while respecting the traditions and history of our judiciary.
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[1] https://www.ontario.ca/page/file-civil-claim-online
[2] Morawetz, Geoffery B. Chief Justice, OSCJ, Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings - Update. April 2, 2020.
[3] Morawetz, Geoffery B. Chief Justice, OSCJ, Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings - Update. April 2, 2020.
[4] Ontario Bar Association, COVID-19 Response and Recovery, April 8, 2021
[5] CaseLines is a cloud-based document sharing platform for remote and in-person court proceedings developed by Netmaster Solutions Ltd and is used in courts in the United Kingdom, South Africa and the United States.
[6] Ministry of the Attorney General. Ontario Regulatory Registry.
[7] Commercial List and Estates List Filing Direction, March 15, 2021.
[8] Ontario Bar Association, COVID-19 Response and Recovery, April 8, 2021.
[9] Consolidated Practice Direction Concerning the Estates List in the Toronto Region.
[10]Morawetz, Geoffery B. Chief Justice, OSCJ, Notice to the Profession and Public Regarding Court Proceedings – UPDATE, April 20, 2021.
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(ii) WHAT REMAINS – INTRODUCTION |
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By Bryan Gilmartin
Death is a reality of life that the majority of us choose not to think about. That is of course unless you’re like me. Having grown up in my family’s funeral home and now practicing in this area of law, death (for better or for worse) is something that has and will always be top of mind. After all, as the old saying goes, we aren’t getting out of this world alive. Though beliefs concerning what the afterlife has in store differ amongst us, what is consistent is the issue of dealing with what remains.
Issues surrounding human remains carry significant emotional, cultural, religious, ethical, and legal implications. Issues that drafting solicitors and estate trustees often face when assisting testators with their planning considerations, including the future treatment of their own remains. Estate litigators too, often deal with issues of the disposition of human remains and burial and plot ownership when family members disagree over the ultimate treatment of the remains of a deceased person. It is one that lawyers, legislators, and courts alike must address, to ensure, from a policy perspective that remains are disposed of in a respectful, lawful, hygienic, and appropriate manner.
Though the law concerning the treatment of remains is relatively straightforward and well-settled, prioritizing the role of the estate trustee, and the dignified treatment of the deceased’s remains, is also an area subject to subtle pressures from a societal perspective as times and practices continue to evolve. Our culturally and religiously diverse population means that different practices are uniquely followed, while at the same time, priorities are shifting toward practical considerations of cost, as well as environmental and efficiency concerns. These cultural shifts affect to a limited degree, the direction the law will take in addressing the thorny and sensitive issues surrounding human remains, yielding substantially to the common law treatment of who has the ultimate authority to deal with the remains.
This is our Newsletter introduction to what will be a weekly blog series that will explore these issues, the relevant legislation and case law, and its application to our ever-changing and increasingly diverse population. STAY TUNED! Watch for our Blog!
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Osgoode Professional Development
Contentious Guardianship Applications and Removals of Attorneys and Guardians
April 27, 2021
Speaker: Kimberly Whaley
Canadian Lawyers Webinar
Top 10 – Lawyers Need to Know About Death and Capacity
May 4, 2021
Speakers: Kimberly Whaley and Ian Hull
Law Society of Ontario Six Minute Estates Lawyer
May 13, 2021
Medical Assistance in Dying (MAID) Update
Speaker: Kimberly Whaley
TPL & CanAge Educational Speakers Series – POA Advisory Committee
Power of Attorney 101
May 27, 2021
Speaker: Kimberly Whaley
Law Society of Ontario, 15th Solo and Small Firm Conference
The Solo/Small Advantage
June 10, 2021
Chair: Kimberly Whaley
Estate Planning and Litigation Virtual Mini Forum
New Developments in Case Law
June 16, 2021
Speaker: Kimberly Whaley
Ontario Police
Elder Abuse Investigations 2021
June 16, 2021
Speakers: Daniel Paperny and Matthew Rendely
OBA Elder Law Day
Covid-19 Impacts on Elder Abuse
June 21, 2021
Speaker: Kimberly Whaley
Toronto Police
Elder Abuse Investigator’s Course
Civil & Criminal Remedies
September 3, 2021
Speakers: Matthew Rendely and Bryan Gilmartin
International Federation of Ageing – 15th Global Conference on Ageing November 9-12, 2021
Speakers: Daniel Paperny and Matthew Rendely
Ontario Police
Elder Abuse Investigations 2021
November 16, 2021
Speakers: Bryan Gilmartin and Paul Murphy
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
DATE: TBD
Decisional Capacity: A Wills & Estates Context
Speaker: Kimberly Whaley and John Poyser
Estate Planning and Litigation Forum
Spring 2022
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Check out our recent Feature Series which are posted on our Blog:
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VII. IN CASE YOU MISSED IT - RECENT BLOG POSTS |
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