Hello,
Since our last newsletter, there have been so many events, some, to celebrate recognitions made, others, which involved dialogue over tough social issues that we continue to consider and strive to improve upon.
We celebrated our family during Family Day.
We had the opportunity to congratulate Professor Oosterhoff on his being awarded the CBA 2021 Hnatyshyn Award for Law.
Our team was recognized by Canadian Lawyer Magazine as a 2021 Top Wills, Trusts, and Estates Boutique. We celebrated International Women’s Day. As a woman lawyer, entrepreneur, business owner, a daughter, a mother, a sister, a mentor, we celebrated women everywhere and their messages were heard on social media by all of us.
We took a moment to talk about bullying on Pink Shirt Day with a call to action to make change happen.
We collaborated on issues in our ageing community at a STEP Symposium on Vulnerable Persons.
A group of dedicated volunteers were proud to assist our policing community in the collaboration, development and release of an important Toronto Police Services Video on Elder Abuse for the benefit of our community.
So many of us are involved in making change happen. To all of you who are involved on committees, associations, foundations, and boards, who volunteer, and who make a difference to people in need of assistance, thank you for all you do. Take a moment to celebrate your challenges and your victories. We are truly one year on in this fight to eradicate the pandemic, and, I hope our resilience lasts through these next months of vaccination. We must pause to think about those who have suffered the terrible loss of life, those who have survived the loss of loved ones, and to thank the people who sacrifice every day to provide us with the necessaries of life. So, in the spirit of celebration, and recognition, I want to thank you for the important work that all of you do.
Finally and importantly, do something green, it's St. Paddy’s Day-a true reason to celebrate. Happy St. Patrick’s Day & Happy Spring!
Enjoy the Read,
Kim
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1. TORONTO POLICE SENIORS COMMUNITY CENTRE, WORKSHOP ON ELDER ABUSE, MARCH 1, 2021 |
Brian Urkosky, Staff Seargent, invited Kimberly Whaley and Laura Tamblyn Watts, President and CEO of CanAge, to speak to the Toronto Police. The audience consisted of liaison officers for all the various Toronto Police Services consultative communities across the city (Community Partnerships and Engagement Unit).
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2. STEP CANADA SPECIAL SYMPOSIUM ON VULNERABLE CLEINTS, MARCH 8, 2021 |
STEP put on a ‘by invitation’ only special symposium with over sixty participants from likeminded organizations regarding vulnerable clients on Monday, March 8th. The program committee involved Peter Weissman, Amanda Doucette, Diane Everett, Sara Plant, Kathleen Cunningham, Michael Dodick and Amanda Edwards. The symposium consisted of two case scenarios which presented issues involving different professional sectors, involving elder abuse exploitation and vulnerability. The delegate list participated in constructive potential identification of issues, stakeholder involvement, a discussion of challenges, rights and remedies. In a panel discussion moderated by Kim Whaley and Laura Tamblyn Watts, the panelists, Dr. Carole Cohen, Detective Martin Franssen, Leanne Kaufman, and Sarah Bradley, spoke of challenges in their sectors, and ideas for strategizing over remedies. If you would like more information about this special symposium please contact Michael Dodick at STEP Canada.
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3. PREDATORY MARRIAGES, SAGE MAGAZINE, MARCH 10, 2021 |
Professor Albert Oosterhoff and Kimberly Whaley were interviewed by journalist, Mary Bruineman, on Predatory Marriages for SAGE (a magazine) with a national focus on the Federal Retirees’ Association.
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4. CONSOLIDATED PRACTICE DIRECTION CONCERNING ESTATES LIST IN THE TORONTO REGION, NOTICE OF AMENDMENT |
Effective March 9, 2021, Part VII (Contested Matters – Estates) has been amended to make reference to model orders prepared by the Estate List Users’ Committee.
All lawyers practicing on the Commercial (Estates) List should be making use of these model orders and if altering them, track changing them for the court to demonstrate changes sought to usual orders.
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5. CANADIAN LAWYER MAGAZINE, 2021-2022, TOP WILLS, TRUST/ESTATES BOUTIQUE |
WEL Partners gratefully acknowledges the recognition by Canadian Lawyers Magazine as a 2021 Top, Wills, Trust and Estates Law Boutique, and congratulates their colleagues on this esteemed honour.
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6. CANADIAN LAWYER, MAGAZINE, ISSUE 45.02 |
Daniel Paperny was quoted in the article: “Leaving a Legacy that Will Last,” as published in the Canadian Lawyer Magazine, Issue 45.02
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7. CHAMBERS HIGH NET WORTH, 2021 |
WEL Partners is honoured to be recognized in Chambers & Partners Global 2021. Many thanks to the clients and colleagues that continue to make estates law so engaging!
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8. BAYCREST PROFESSIONAL ADVISORY COMMITTEE |
Our congratulations to Bryan Gilmartin who has been appointed as a new member of the Baycrest Professional Advisory Committee of the Baycrest Foundation.
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 and holds regular breakfast seminars on subjects that are timely and relevant.
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9. TORONTO POLICE VIDEO ON ELDER ABUSE |
The Toronto Police has released an important video in helping to understand and learn the signs of Elder Abuse.
Here are the links:
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10. SUPPORT FOR SCHEDULE 9 TO BILL 245 |
Ian HuIl, Professor Albert Oosterhoff, Kimberly Whaley and Nick Esterbauer, were invited to share insights and submissions directly with the office of the Attorney General of Ontario and with the Standing Committee on the Legislative Assembly of Ontario Bill 245. Our main submissions were made in writing and included not only strong support for schedule 9 to the Bill 245, but detailed a host of other areas in need of legislative reform including:
- Electronic Wills and validation
- Elder Law
- Substitute Decisions Act concerning Powers of Attorney and Guardianship
- SLRA on Dependant’s Support
- Section 1: Permanent Virtual Witnessing and Counterpart Execution Provisions will Facilitate Access to Justice
- Sections 2 and 3: Eliminating the Automatic Revocation of a Will Upon Marriage Will Help Protect Vulnerable Older Adults
- Sections 4, 6, and 7: Enhancing the Legal Impact of Separation Better Reflects Demographic Trends
- Section 5: Validation Provision Will Help Fulfill Testamentary Intentions
- Signing and Subscribing of Wills in Counterpart
- The Repeal of Sections 15(a) and 16 of the SLRA and the Absence of Transition Provisions (Bill 245, Schedule 9, s. 2)
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11. THE DEMENTIA EXPERIENCE, DETECTIVE MARTIN FRANSSEN |
Detective Martin Franssen shared with WEL his PPT and a video on the Dementia Experience. Thank you Martin for sharing this important information.
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12. WEL PARTNERS VIDEO ON ELDER LAW
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We are pleased to share with you our LSO accredited Elder Law Video.
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CANADIAN BAR ASSOCIATION 2021, RAMON JOHN HNATYSHYN AWARD FOR LAW |
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WEL Partners congratulates our very own Professor Albert Oosterhoff on being awarded the esteemed Canadian Bar Association 2021 Ramon John Hnatyshyn Award for Law.
The Ramon John Hnatyshyn Award is given to recognize outstanding contribution in law reform, legal scholarship and/or legal research.
Professor Oosterhoff was presented with an engraved bronze medallion designed by the Governor General’s Office of Heraldry at the CBA President’s Dinner which was conducted virtually on February 17, 2021.
We are so pleased for Albert and congratulate him again on this great honour.
View Professor Albert Oosterhoff’s acceptance speech on YouTube:
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WEL CONGRATULATES THE RECIPIENTS OF THE LAW SOCIETY MEDAL 2021 |
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The Law Society Medal was given to the following recipients for outstanding service within the profession, whether in the area of practice, in the academic sphere, or in some other professional capacity where the service is in accordance with the highest ideals of the legal profession:
- Peter Griffin
- Eldon Horner
- Judith Huddart
- Susan Kyle
- Candice S. Metallic
- Janice Payne
- Professor Poonam Puri
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(i) WELCOME AMENDMENTS TO ONTARIO’S SUCCESSION LAW REFORM ACT |
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By Albert H. Oosterhoff
Ontario’s Succession Law Reform Act (“SLRA”)[1] is a venerable piece of legislation that was first enacted in 1977. It made a large number of important changes in the law of succession that were then long overdue. However, the statute is more than 40 years old and, although there have been some minor changes to it over the years, it is long overdue for a complete overhaul. This is evident when compared to succession statutes in other Canadian jurisdictions. Some have updated their statutes completely, while others have made significant changes to them.
The COVID-19 Pandemic that engulfed us along with the rest of the world in 2020 and which still places significant constraints on us, demonstrated that there were serious defects in the SLRA. In the main these concerned the difficulty in attending to the execution of wills and other estate planning documents when lawyers were (and are) required to maintain a physical distance from their clients. This problem was exacerbated by the fact that Ontario, unlike many other provinces had not enacted a validating provision, that would have enabled courts to grant probate of wills even though not all the formalities were complied with.
Ontario, along with other provinces, solved the difficulties in the execution of wills in part by passing emergency orders[2] under the Emergency Management and Civil Protection Act[3] that permitted execution of estate documents through the use of audio-visual communication technology and signing or subscribing identical copies of wills in counterpart.
The Hon. Doug Downey, Ontario’s Attorney General, consulted with the estates bar and took the lead in passing the emergency orders and in proposing further reforms. On 16 February 2021, he introduced Bill 245 in the Legislature, entitled Accelerating Access to Justice Act, 2021 (“AAJA”)[4] It received first reading on that day. The AAJA makes significant and welcome changes to a number of statutes and enacts another statute. However, in this blog I shall focus on Schedule 9, which adds new provisions to and repeals other provisions in the SLRA.
This blog is rather technical and skips back and forth between the AAJA and the SLRA. So in order to make the blog more accessible I have bolded beginning portions (and sometimes other portions) of paragraphs to indicate when I am going to discuss a new section of the AAJA.
Sections 1 and 2 of the AAJA repeal subsections 4(1), (3), and (4) of the SLRA, the formal requirements section, replace them with new provisions and add a new subs. (5). The section repeats the substance of the emergency orders referred to above and thus makes them permanent. Subsection (1) defines “audio-visual technology” as “any electronic method of communication in which participants are able to see, hear and communicate with one another in real time”. Subsection (3) permits the use of audio-visual communication technology for the purpose of signing and subscribing a will in accordance with the existing subs. 4(2). However, subs. (3) requires:
(i) that one of the witnesses must be a licensee of the Law Society of Ontario;
(ii) that the making or acknowledgement of the testator’s signature or the subscribing of the will by the witnesses be contemporaneous; and
(iii) that any requirements imposed by regulation are met.
Subsection (4) permits the signing and subscribing in counterpart. A new subs. (5) quite properly provides that when a will is signed or subscribed in counterpart, copies of the will are identical even if there are minor, non-substantive differences in format or layout between the copies. And a new subs. (7) permits the making of regulations providing for the requirements that must be met under subss. (3) and (4).
Sections 2 and 3 of the AAJA are very significant. Section 2 repeals clause 15(a) of the SLRA, which provides that a will or part of a will is revoked by marriage, subject to s. 16. Section 3 of the AAJA repeals s. 16 of the SLRA, which makes three exceptions to clause 15(a). Thus, these two sections of the AAJA get rid of the “revocation by marriage” provision in the Act. This is a most welcome change, one that was previously adopted by other provinces.[5] The repeal goes a significant way in stopping the consequences of a predatory marriage. With such a marriage the will of the party who is the victim of the relationship is revoked and the predator then stands to make a significant gain when the victim dies intestate. I believe that more must be done to prevent predatory marriages, but this is an important first step.[6]
Section 17 of the SLRA deals with changes in circumstances. Subsection (1) provides, “Subject to subsection (2)” a will is not revoked by presumption of an intention to revoke it when there is a change in circumstances. Subsection (2) provides that, “except when a contrary intention appears by the will”, when the testator’s marriage is terminated or declared a nullity, a devise or bequest to the former spouse, the appointment of the former spouse as executor or trustee, and the conferring of a general or special power of appointment on the former spouse are revoked and the will must be interpreted as if the former spouse predeceased the testator. Clause 4(1) of the AAJA amends subs. 17(1) of the SLRA by striking out the phrase in that subsection placed in quotation marks above and replacing it with, “Except as otherwise provided in this section”. Clause 4(2) of the AAJA amends s. 17 by adding three new subsections to s. 17. Subsection 17(3) extends subsection 17(2), with necessary modifications to the situation when the testator and his or her spouse are separated at the testator’s death. Subsection 17(4) lays down rules for determining whether the parties were separated. They are as follows:
(4) A spouse is considered to be separated from the testator at the time of the testator’s death for the purposes of subsection (3), if,
(a) before the testator’s death,
(i) they lived separate and apart for three years as a result of the breakdown of their marriage,
(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and
(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage.
Finally, subsection 17(5) contains transitional provisions, which state that subs. (3) applies if an event in clause 4(a) occurs on or after the day in which subs. 4(2) of the AAJA comes into force, even if the will was made before that day, except that in the case of subclause 4(a)(i), the spouses must have begun to live separate and apart on or after that day.
Section 5 of the AAJA introduces another very welcome provision into the SLRA. The new section 21.1 of the SLRA is a validating provision that exists in most of the other Canadian wills statutes.[7] The section provides:
21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.
(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.
Subsection 5(3) of the AAJA is a transitional provision. It states that subs. (1) applies if the deceased died on or after the day section 5 of the AAJA comes into force.
Note that s. 21.1(2) ensures that s. 21.1 does not introduce electronic wills, something that British Columbia did recently.[8]
Section 6 of the AAJA makes a change to Part II of the SLRA, the intestacy provisions. Under Part II the surviving spouse of the intestate is given significant priority over descendants. However, s. 6 of the AAJA adds a new section 43.1 to the SLRA. Subsection 43.1(1) provides:
43.1 (1) Any provision in this Part that provides for the entitlement of a person’s spouse to any of the person’s property does not apply with respect to the spouse if the spouses are separated at the time of the person’s death, as determined under subsection (2).
Subsections (2) and (3) of s. 43.1 then go on make provisions to determine whether the parties were separated and transitional provisions similar to those made in subsection (4) and (5) of s. 17 of the SLRA, described above.
Section 7 of the AAJA makes an important amendment to s. 6 of the Family Law Act.[9] It adds subs. 6(21), which provides that if a surviving spouse has no entitlement to the deceased intestate spouse’s property by reason of s. 43.1, s. 6 applies as if the surviving spouse’s entitlement under Part II of the SLRA has a value of $0.
Section 8 of the AAJA repeals s. 63(3) of the Statute Law Amendment Act (Government Management and Services), 1994.[10] Section 63 amended s. 45 of the SLRA and subsection (3) determined the day it came into force.
Section 9 of the AAJA provides for the coming into force of its provisions. Subsection (1) provides that subject to subsections 9(2), (3), and (4), Schedule 9 comes into force when the AAJA receives Royal Assent. Subsection (2) provides quite rightly that subsection 1(1) is deemed to have come into force on 7 April 2020, which is the date on which the first of the emergency orders referred to above concerning the use of audio-visual communication technology for the execution of wills came into effect. Subsection (3) provides that subsections 1(2) and (3) of the AAJA, which concern the use of audio-visual communication technology in executing wills, come into force on a day to be named by the Lieutenant Governor. And subsection (4) provides that sections 2 to 7 of the AAJA come into force on a day to be named by proclamation of the Lieutenant Governor that is not earlier than 1 January 2022.
In conclusion, the AAJA has made important and welcome changes to the SLRA, some of which were long overdue. However, the SLRA is badly in need of a thorough revision and it is my hope that this will in fact be undertaken.
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[1] R.S.O. 1990. c. S.26.
[2] O. Reg 129/20, made on 7 April 2020. It’s substance was revoked and replaced by O. Reg. 164/20, made on 22 April 2020.
[5] Alberta, British Columbia, and Saskatchewan have repealed these provisions. Quebec has never had a “revocation on marriage” provision. For details see Oosterhoff on Wills, 9th ed. (forthcoming spring of 2021) by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters/Carswell, 2021), §10.3.2(a).
[7] For a list of these statutes and a discussion of their validating powers, see Oosterhoff on Wills, supra, §9.4.
[8] See Wills, Estates and Succession Act, S.B.C. 2009, s. 35.1-35.3, added by S.B.C. 2020, c. 12, which also made complementary amendments to existing sections.
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(ii) THE STATUTORY REQUIREMENTS FOR PROOF OF A WILL IN COMMON FORM: NOT COMMON KNOWLEDGE IN A TIME OF COVID
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By Matthew Rendely
In Ontario, it is typically not a legislative requirement that a Last Will and Testament be prepared or executed by a testator with the assistance of a lawyer. It goes without saying, however, that the time of COVID is anything but typical.
On April 22, 2020, the Ontario Government enacted Ontario Regulation 129/20 pursuant to the Emergency Management and Civil Protection Act (the “Regulation”).[1] This Regulation in part amended the Succession Law Reform Act (the “SLRA”) respecting the requirements for the signing and witnessing of a testamentary document.
In summary, the Regulation amended the SLRA to allow for a testator and its subscribing witnesses to sign a Last Will and Testament in each other’s “presence” by the use of audio-visual communication technology.[2] A testator and its witnesses will be deemed to have been in each other’s presence if they are able to see, hear and communicate with one another in real time at the time of execution by use of audio-visual communication technology. This change to the SLRA has allowed for the safe execution of testamentary documents during this rather unsafe time of COVID.
A further and crucial change to the requirements in the SLRA for due-execution of a testamentary document under the Regulations, is that now one of the subscribing witnesses at the time of execution must be a licensee within the meaning of the Law Society Act.[3] Failure to comply with this part of the Regulation can be a fatal error. This was in fact the very case in the decision of Swiddle Estate (Re), 2021 ONSC 1434 (CanLII).[4]
In Swiddle Estate (Re), the Hon. Mr. Justice P. Boucher refused to grant a Certificate of Appointment of Estate Trustee With a Will limited to assets referred to in the Primary will with codicils of Stella Rose Swiddle, to the deceased’s named executor, Ronald Martin Swiddle.
On June 23, 2020, during the height of the Covid pandemic, the late Ms. Swiddle executed a Third Codicil to her Primary Last Will and Testament.[5]
The witnesses to Ms. Swiddle’s Third Codicil were physically located in Greater Sudbury, Ontario, while Ms. Swiddle was at her daughter’s house in Mississauga, where she had spent the winter. The witnesses spoke on the telephone with Ms. Swiddle when she reviewed and signed her Third Codicil.[6] The Third Codicil was sent to the witnesses via Purolator the next day following her execution of it, and they signed it on the last page.
Justice Boucher ruled that since the Third Codicil was not executed in accordance with the SLRA and the amendments thereto made under the Regulations, he was unable to issue the requested Certificate of Appointment.
Looking more closely at Justice Boucher’s endorsement, his Honour was careful to state that he was “unable at this time and on this record to issue the requested Certificate [emphasis added].”
I suspect that Justice Boucher was careful to use these words in light of the pending changes to the SLRA that are currently before Ontario’s Legislative Assembly in Schedules 7 and 9 of Bill 245, Accelerating Access to Justice Act, 2021 (the “Bill”).
As part of the Bill, the court would be given the authority to validate an improperly executed Last Will and Testament such Ms. Swiddle’s Third Codicil, so that the intentions of a testator might be saved and a testamentary document proven in common form where the document may fail on its face to comply with the strict statutory requirements for due-execution under the SLRA.
In part of their submissions to the Ontario Legislative Assembly on March 12, 2021, Kimberly Whaley, Albert Oosterhoff and Ian Hull explained that as it currently stands under the law, without strict adherence to the SLRA and Regulation it is a “dead stop” that a testamentary document will fail for lack of due-execution. These submissions echoed the words of Bouchard J. in his Honour’s endorsement in Swiddle Estate (Re), where his Honour affirmed that “Ontario is a jurisdiction that requires strict adherence to the formalities of execution of a Will, as set out in the legislation.”
If the Bill passes and is enacted into law in its current form, Justice Boucher may be able to rectify a testamentary document signed in the future in the same way as Ms. Swiddle’s Third Codicil so as to grant the requested Certificate of Appointment. We look forward to seeing how the law develops and if the Bill is passed.
Thank you for reading!
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[1] On July 15, 2020 the Regulation was continued pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020
[2] All of the requirements for the virtual execution of Wills and Powers of Attorney can be found at Signatures in Wills and Powers Of Attorney, O Reg 129/20, <https://canlii.ca/t/54cmt>
[3] Law Society Act, RSO 1990, c L.8, <https://canlii.ca/t/54w88>
[4] Swiddle Estate (Re), 2021 ONSC 1434 (CanLII), <https://canlii.ca/t/jdfgc>
[5] The date of Ms. Swiddle’s Last Will and Testaments and Codicils other than her Third Codicil are not referenced in the Court’s Endorsement.
[6] It is not stated in the court’s endorsement if one of the two witnesses to Ms. Swiddle’s Third Codicil was a licensee under the Law Society Act.
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(iii) HAVE YOU HEARD ABOUT THE NFT REVOLUTION AND ITS IMPACT ON ESTATES? |
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By Daniel Paperny
Non-Fungible Tokens or (“NFTs”) have taken the tech world by storm in 2021, as the variety of assets that are tagged with this “blockchain” technology (ranging from sports trading cards, collector’s items, works of art and music) are selling for increasingly staggering amounts in the online marketplace. This past week, a particularly pricey NFT digital image was sold by Christie’s NYC auction house for a cool $69 million. This may be perplexing for some, considering this record-setting price tag is for a work of digital art that does not actually exist in the physical world, and does not come with exclusive rights to use the art.
So what exactly are NFTs? Why have their popularity and prices skyrocketed recently? How does this affect our estate plans and administration?
NFTs come from the same family of cryptocurrency technology (blockchain) that birthed the Bitcoin and other forms of crypto currency. The technology is unique, in that, the Non-Fungible Tokens essentially act as certificates of authenticity and ownership for any asset or item they are attached to; guaranteeing the legitimacy, originality and ownership of almost anything, including digital and tangible assets.
Notably, the Non-Fungible Tokens are irreplaceable or not-able-to-be-replicated (not fungible), meaning that when an NFT is attached to a work of digital art or other asset, the owner of that NFT has the assurance (registered in the blockchain) that they own a limited-edition, or one-of-a-kind asset, which can then be transferred or sold amongst owners as prices fluctuate based on the market or demand for the asset. In this way, the NFT blockchain provides a sort of ‘title registry’ which shows the chain of ownership of a NFT.
What is somewhat confusing, is that owning an NFT does not give the owner exclusive use or enjoyment of the asset it is attached to. For instance, an NFT-protected digital image can still be copied by others who can screenshot, download, print or otherwise reproduce the image. What gives NFTs their incredible potential value is that the NFT registration itself cannot be replicated, the token is guaranteed to be unique, it certifies “ownership” and it can be sold or transferred on the open market. When you buy an NFT, you buy both the item it is attached to, and the irreplicable token itself, the latter being where the real value lies. In recent months, the NFT market has absolutely exploded, with assets like sports trading cards, digital images and artworks selling for thousands if not millions of dollars.
How might the rise in popularity and value of NFTs effect estate planning and estate administration?
As with any physical asset, the owner of an NFT has a right or interest in the asset and the ability to transfer it to their heirs upon their death. This can be done by way of a testator’s will, trusts or other planning instruments. However, the transfer of these electronic assets may not be as seamless or simple as the transfer of physical assets, because electronic keys or passwords are required to access/locate and transfer the asset.
As is the case with cryptocurrencies like Bitcoin, an NFT can usually only be accessed on the blockchain with an owner’s personal key or password, without which the NFT could be lost forever. If the key or password to your blockchain assets (Bitcoin, NFT, etc) is lost or misplaced, the asset itself will be impossible to recover due to the blockchain’s security (even with a court order, the assets are inaccessible without a password). This has already created issues with Bitcoin, which has seen instances of owners who have lost millions of dollars worth of Bitcoin because they have misplaced or lost the password.
For owners of NFTs making their estate plans (and for their professional advisors) it is absolutely crucial that they create a system for tracking and locating the personal keys and passwords that are necessary to locate and access these digital assets, so that heirs and those administering estates, can secure the digital asset. It is imperative to ensure that future estate trustees will be able to access these keys during the estate administration, so these assets and the ability to access them are not lost upon the death of the original owner.
Further, if the owner of the digital asset wishes for it to be maintained following his or her death, then he or she should specify in his/her estate plan exactly how the NFT should be held or transferred upon death, to avoid the NFT forming part of the residue of the estate and potentially being liquidated or sold-off as a result.
In addition, the historic value of digital assets (NFTs, cryptocurrencies, etc.) should always be logged and tracked by those creating their estate plan, as the inevitable fluctuation in the value of these assets can have consequences for one’s estate taxes and ultimately for those standing to benefit from the estate. It’s important, therefore, that owners of NFTs and Bitcoin not only track the passwords/keys required to access these assets, but also create a system for tracking the value of the asset.
NFTs, as a technology and class of assets, are relatively new, and in many ways we are still learning how these digital assets, their values and the ways in which they are used will evolve over time. It will be interesting to see whether the buzz currently surrounding these blockchain technologies is just an internet fad, or whether the NFT marketplace is here to stay, and if so, what further impact this could have on estate planning and administration.
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(iv) NOTHING BUT CONFUSION: IS IT ALSO TIME TO UPDATE SECTIONS 85 AND 86 OF
THE SUBSTITUTE DECISIONS ACT?
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By Bryan Gilmartin
Overview
Aside from the limitations and restrictions we presently face due to the COVID-19 pandemic, the world is becoming increasingly accessible. In this modern age, it is commonplace for citizens of this province to hold property in foreign jurisdictions and split their time between Ontario and those jurisdictions. Some head south for the winter while others relocate on a more permanent basis. This is especially prevalent among the elderly in our society.
With this drastic increase in the mobility of persons and wealth, issues will inevitably arise concerning the validity and recognition of foreign power of attorney documents in Ontario.
The current law only provides a limited response to these issues. In particular, a gap in Ontario’s Substitute Decisions Act[1] poses a problem for those who have chosen to grant power of attorney documents in a foreign jurisdiction to assist with managing their affairs abroad and in Ontario contemporaneously.
Sections 85 of the SDA acknowledges the validity of power of attorney documents made in a foreign jurisdiction. Section 86 of the SDA attempts to establish a mechanism to ‘reseal’ or recognize a court order pertaining to guardianship or the validity of a power of attorney document granted in a foreign jurisdiction. However, on at least one occasion, our court has declined to apply section 86 due to the fact that it is deficient. As discussed further below, this has added a layer of complexity in the context of litigious proceedings concerning the validity of foreign power of attorney documents.
Section 85 of the SDA
Section 85 of the SDA deals with advance directives and care for incapable persons. In particular, this section provides that powers of attorney validly granted in foreign jurisdictions will be recognized as enforceable in Ontario:
85(1) as regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,
(a) The power of attorney was executed;
(b) The grantor was then domiciled; or
(c) The grantor then had his or her habitual residence.
The SDA does not, however, afford complete reciprocal enforcement of foreign law relating to Powers of Attorney. The following provision limits the range of enforcement and states:
(4) If, under this section or otherwise, a law in force outside Ontario is to be applied in relation to a continuing power of attorney or a power of attorney for personal care, the following requirements of that law shall be treated, despite any rule of that law to the contrary, as formal requirements only:
- Any requirement that special formalities be observed by grantors answering a particular description.
- Any requirement that witnesses to the execution of the power of attorney possess certain qualifications.
Section 86 of the SDA
Section 85 of the SDA is problematic in the context of contentious proceedings concerning the validity of power of attorney documents granted in a foreign jurisdiction. When faced with the issue of determining whether or not a power of attorney document conforms to the laws of a foreign jurisdiction it can be difficult to achieve or disputed in the context of the litigious proceedings.
The best evidence in such a scenario would be an Order declaring the power of attorney document to be valid from a court in the jurisdiction where it was granted. Section 86, at least on its face, provides a mechanism to have such an Order resealed or recognized in Ontario as a valid Order. However, as noted above, a gap in the legislation currently prohibits a court in Ontario from recognizing such a foreign Order.
Section 86 of the SDA provides that orders made by a court outside of Ontario appointing a person having duties comparable to those of a guardian of property or guardian of the person may be recognized or “resealed” in Ontario.
In particular, section 86(2) of the SDA provides that “any person may apply to the court for an order resealing a foreign order that was made in a province or territory of Canada or in a prescribed jurisdiction.”[2]
Section 90(g) of the SDA provides that the Lieutenant Governor in Council may make regulations prescribing jurisdictions for the purpose of section 86. However, no jurisdictions have been prescribed. The result, as evidenced by case law, is that only orders made in other provinces and territories within Canada be can be resealed in Ontario using the mechanism set out in s. 86 of the SDA.
This issue was first addressed in 2013 in Cariello v. Father Michele Perrella[3]. In this case, the court refused to apply section 86 to reseal a guardianship order made in Italy due to a lack of guidance from the province. Specifically, Justice Mesbur stated as follows:
It seems to me that unless and until Ontario creates a list of ‘prescribed jurisdictions’ there is simply no legislative basis on which I can apply s. 86. This is not a case where the statute inadvertently fails to deal with an issue. Here, the province has simply failed to take the regulatory steps necessary to create a list of prescribed jurisdictions to which s.86 would apply. I have no idea of the province’s intentions in that regard. I fail to see how I can simply assume Ontario would designate Italy as a prescribed jurisdiction when it finally creates a list of prescribed jurisdictions under the SDA. I have no basis to conclude that Ontario has any intention of having s. 86 to apply to any jurisdiction other than another Canadian province or territory. Section 86 cannot apply.[4]
There is an argument to be made that Cariello was wrongly decided. It seems untenable and cannot be true that a foreign Order can only be resealed if the province has given its approval to the foreign jurisdiction by prescribing it in a regulation. The statute should override the lack of any prescriptions, or else the legislation remains meaningless. This could not have been the intention behind section 86.
Whether right or wrong, the court’s interpretation of section 86 and its outright refusal to apply it serves as a potential deterrent to those in need of such relief. This is on its face a problem if we accept that the case above is correctly decided. Though too, arguably and worth noting the inherent jurisdiction of the court could reasonably prevail in like situations.
Saskatchewan’s Adult Guardianship and Co-decision-making Act – A Potential Solution
Section 65.1 of Saskatchewan’s Adult Guardianship and Co-decision-making Act[5] presents a wide-sweeping, comprehensive, and practical solution to the issue we face in Ontario. Section 65.1 of the Act provides as follows:
65.1 Foreign orders
65.1(1) In this section, "foreign order" means an order made by a court outside Saskatchewan that appoints a person to have duties comparable to those of a personal guardian or property guardian with respect to the personal welfare of the adult or with respect to the financial welfare of the adult.
65.1(2) A person who is appointed by a foreign order to have duties comparable to those of a personal guardian or property guardian may apply to the court, in the prescribed form, to have the foreign order resealed.
65.1(3) An applicant for resealing shall:
(a) produce to and deposit with a local registrar of the court the foreign order to be resealed;
(b) pay the prescribed fees;
(c) in the case of an applicant who has duties comparable to those of a property guardian:
(i) provide the local registrar of the court with an accurate inventory of the estate of the adult in Saskatchewan so far as this information has come to the knowledge of the applicant:
(A) stating the income and profits of the estate; and
(B) setting out the assets, debts and credits of the adult; and
(ii) if property in Saskatchewan belonging to the estate is discovered after the filing of an inventory pursuant to subclause (i), provide the local registrar of the court with an accurate inventory of the estate immediately on the property being discovered; and
(iii) verify by affidavit every inventory required pursuant to this clause; and
(d) serve a copy of the application in accordance with section 65.3.
65.1(4) On an application pursuant to subsection (2) and after any hearing that the court considers necessary, if the applicant has complied with subsection (3), the court may order that the foreign order be resealed.
65.1(5) On resealing a foreign order pursuant to subsection (4):
(a) the foreign order:
(i) is of the same force and effect in Saskatchewan as if it were issued by the court;
(ii) is subject to any orders of the court as if the foreign order had been granted in Saskatchewan; and
(iii) is, with respect to the adult who is the subject of the foreign order, subject to appeal and review in the same manner as an order appointing a personal guardian or property guardian; and
(b) without limiting the generality of clause (a), the applicant for resealing may exercise the same powers and is subject to the same duties as a personal guardian or property guardian as if the foreign order were issued by the court, including the duty to provide an annual accounting and a final accounting in accordance with this Act.
65.1(6) If the court makes an order pursuant to subsection (4), the court shall determine whether it is in the best interests of the adult to require a review of the resealed foreign order and, if a review is required, shall specify the period within which the review is to take place.
65.1(7) For the purposes of this section, a duplicate of a foreign order sealed with the seal of the court outside Saskatchewan that sealed it or a copy of a foreign order certified by or under the direction of the court outside Saskatchewan that granted it has the same effect as the original foreign order.
65.1(8) The court may not reseal a foreign order pursuant to this section until the registrar, clerk or other officer of the court outside Saskatchewan that issued the foreign order has issued a certificate to the effect that the foreign order is wholly unrevoked and of full effect.
Rather than proposing a laundry list of ‘prescribed jurisdictions’, the Act contains broad language that accommodates orders made in any foreign jurisdiction that pertain to guardianships and powers of attorney. This avoids the inevitable issue of failing to capture a particular foreign jurisdiction while providing a comprehensive process to verify the validity and applicability of the order.
Furthermore, sections 65.2 and 65.3 of the Act impose further obligations on the person(s) seeking to have a foreign order resealed. These sections afford an added layer of protection for those vulnerable people who are the subject matter of such orders and power of attorney documents. Sections 65.2 and 65.3 of the Act provide as follows:
65.2 Security required on resealing foreign order
65.2(1) Subject to subsection (4), if the court makes an order pursuant to subsection 65.1(4) and the order is with respect to the appointment as a property guardian, the court may require the person who is to act as property guardian to file a bond, in the prescribed form, with the local registrar of the court, undertaking to properly act as property guardian for the adult, with any sureties that the court may require.
65.2(2) If the court requires a bond to be filed pursuant to subsection (1), the court shall determine the amount of the bond.
65.2(3) The court may direct that more than one bond be given in order to limit the liability of a surety to an amount that the court considers reasonable.
65.2(4) No bond is to be required pursuant to subsection (1) if:
(a) a certificate of the registrar, clerk or other officer of the court outside Saskatchewan that issued the foreign order is filed, stating that security has been given in that court in an amount that is sufficient to cover the assets within the jurisdiction of that court and the assets within Saskatchewan; or
(b) the value of the adult's estate does not exceed the prescribed amount.
65.3 Service of application to reseal a foreign order
65.3(1) A copy of an application to reseal a foreign order pursuant to section 65.1 must be served on:
(a) the adult;
(b) the nearest relatives within the meaning of section 5, except any nearest relative who has consented in the prescribed form to the order requested in the application;
(c) the member of the Executive Council responsible for the administration of The Child and Family Services Act if the adult is receiving services pursuant to section 10 or 56 of The Child and Family Services Act;
(d) the personal decision-maker in Saskatchewan of the adult;
(e) the property decision-maker in Saskatchewan of the adult;
(f) any attorney under a power of attorney given by the adult, if known;
(g) any proxy under a health care directive made by the adult, if known;
(h) any supporter nominated by the adult pursuant to section 9 of The Personal Care Homes Regulations, 1996, if known;
(i) any person who acts as a trustee for the purpose of administering financial benefits on behalf of the adult, if known; and
(j) the public guardian and trustee.
65.3(2) Nothing in subsection (1) requires a person to conduct a search for any person mentioned in clauses (1)(f) to (i) if the existence of that person is not known.
65.3(3) If the court considers it appropriate to do so, the court may dispense with service on all or any of the persons mentioned in clauses (1)(a) to (i).
Conclusion
The Province has the ability to prescribe jurisdictions in accordance with section 90(g) of the SDA. The fact that it has not done so has resulted in at least one decision wherein the court declined to apply section 86. This decision may have since deterred legal practitioners and the like from seeking relief under this section – hopefully not.
Issues that require the assistance of sections 85 and 86 are becoming more prevalent and as such, the legislation is in need of reform so as to clarify the mechanism afforded under sections 85 and 86. Either the Province must prescribe jurisdictions for the purpose of section 86 or provide some form of guidance to assist the court in its application in the absence of same. Alternatively, section 86 could be repealed and replaced with a cogent mechanism that will permit our courts to properly recognized foreign power of attorney documents and orders while protecting the vulnerable members of our society.
--
[1] Substitute Decisions Act, 1992, SO 1992, c30 [SDA].
[2] SDA, s. 86(2) (emphasis added).
[3] Cariello v. Father Michele Perrella, 2013 ONSC 7605 [Cariello].
[5] The Adult Guardianship and Co-decision-making Act, SS 2000, c A-5.3 (the “Act”).
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GLC Women in Law, Part 8
Panel Discussion – Mentoring
March 22, 2021
Speaker: Kimberly Whaley
Osgoode Professional Development
Passing of Fiduciary Accounts
April 6, 2021
Chair: Kimberly Whaley
Speakers, Albert Oosterhoff, Tracey Phinnemore
CBA Webinar, Elder Law
April 8, 2021
Inter-Provincial Issues regarding Powers of Attorneys
Speaker: Kimberly Whaley
Osgoode Certificate in Elder Law
Tackling Financial Abuse of Elders
April 21, 2021
Speaker: Kimberly Whaley
OBA ADR Section Mediation Mentoring Program
April 22, 2021
Speaker: Kimberly Whaley
Osgoode Professional Development
Contentious Guardianship Applications and Removals of Attorneys and Guardians
April 27, 2021
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Toronto Police Seminar
Elder Abuse Investigator’s Course
April 30, 2021
Speakers: Matthew Rendely and Bryan Gilmartin
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30-May 3, 2021 (DATE TO BE CONFIRMED)
Decisional Capacity: A Wills & Estates Context
Speaker: Kimberly Whaley and John Poyser
Canadian Lawyer Webinar
Top 10: Lawyers Need to Know About Death & 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 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
International Federation of Ageing – 15th Global Conference on Ageing
November 10-12, 2021
Speakers: Daniel Paperny and Matthew Rendely
Ontario Police
Elder Abuse Investigations 2021
November 16, 2021
Speakers: Bryan Gilmartin and Paul Murphy
Estate Planning and Litigation Forum
Spring 2022
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