CORRECTION NOTICE - Please accept our apologies for this second email of our September Newsletter.  There was an error in the prior newsletter which has been now corrected. Please delete/ignore prior email. With sincere apologies, Kim

Dear ,

As we move from summer to fall when work gets busier and kids go back to school, remember to enjoy some personal time. Too often we are caught up in work, and deadlines, and limitation periods, and traffic and line-ups and life obligations and oh by the way there are less than 100 days until Christmas and alas - we forget to live it!  Thanks for reading.

Enjoy our Newsletter,
Kim
 
 


I. WEL NEWS

1. SPONSOR WEL AND THE SCOTIA WALLCRAWLERS FOR EASTER SEALS DROP ZONE ON SEPTEMBER 23, 2019

 
Help us help them.  Support WEL Partners and the Scotia Wallcrawlers team in our quest to become superheroes! Easter Seals Drop Zone is a unique and exhilarating fundraising event that encourages ordinary individuals to become superheroes for a day. Participants step outside their comfort zones and face their fears by rappelling from the top of a building while raising much needed funds for Easter Seals kids. Please support Easter Seals and help kids with physical disabilities succeed!
 
Link: sponsor us


2. WEL WELCOMES NEW ARTICLING STUDENT, HENRY HOWE


It is with great pleasure that we introduce and welcome Henry Howe as our newest articling student.

3. PRECEDENT MAGAZINE, FALL 2019

 
Albert Oosterhoff was mentioned in Precedent Magazine, Fall 2019, Volume 13, Issue 3 for his achievement of receiving the OBA's Distinguished Service Award. We are proud of our very own professor.

4. LAW SOCIETY OF ONTARIO CPD, ADMINISTRATION OF ESTATES, SEPTEMBER 10, 2019

 
On September 10, 2019 Kimberly Whaley and Tim Grieve co-chaired the Law Society of Ontario's Administration of Estates program.
 
Among the presenters, our Mike Marra prepared a paper on Duties of an Estate Trustee where a Dependant's Support Claim and Family Law Act Claim are Live Issues.
 
5. STEP TORONTO, CASE LAW AND LEGAL UPDATE, SEPTEMBER 11, 2019
 
Kimberly Whaley and Sareh (Lua) Ebrahimi with colleagues  Eric Hoffstein,  Tom Grozinger and  Mary Wahbi  presented at the STEP Toronto passport program on September 11, 2019.  Kim presented on recent case law.
 
 

6. ONTARIO BAR ASSOCIATION ELDER LAW PROGRAM CAPACITY FOR LAWYERS: HANDLING CLIENT CAPACITY IN A LEGAL RETAINER, SEPTEMBER 18, 2019

 
Kimberly Whaley chaired the Ontario Bar Association Elder Law Section program Capacity for Lawyers: Handling Client Capacity in a Legal Retainer on September 18, 2019.

7. ESTATES TRUSTS AND PENSIONS JOURNAL, FALL 2019
 
Kimberly Whaley and Matthew Rendely's article Posthumously-Conceived Children Born in Ontario: What are their Rights and What do Estate Trustees Need to Know? was published in the Estates Trusts & Pensions Journal, Volume 38 Number 4, August 2019.

8. 2020 EDITION OF BEST LAWYER

 
Professor Albert Oosterhoff, John Poyser and Kimberly Whaley were selected by their peers for inclusion in the 14th Edition of The Best Lawyers in Canada 2020 for their work in Trusts and Estates. Kimberly has been recognized since 2009.

II. WEL SHOUT OUTS
WEL Congratulates Tony Lalonde and his team 'Scotia Wallcrawlers' at Scotia for his continued diligent efforts to raise donations on behalf of Easter Seals Ontario at the annual Easter Seals Drop Zone event which helps kids with physical disabilities succeed.



III. LAW REVIEW
(i) WHO QUALIFIES AS A 'SPOUSE'? THE BC COURT OF APPEAL SAYS IT'S A "JUDGEMENT CALL"
Robledano v. Queano, 2019 BCCA 150 (CanLII)   http://canlii.ca/t/j02ml
 
By Daniel Paperny
 
Introduction

In an unanimous May 2019 decision the BC Court of Appeal upheld a lower court's determination that an alleged couple were indeed "spouses" for the purpose of that province's  Wills Estates and Succession Act, S.B.C. 2009, c. 13 (the "WESA").

The Court in Robledano v. Queano, 2019 BCCA 150 ("Robledano") applied a flexible and contemporary approach to the definition of "spouse" in arriving at its ruling that the plaintiff in this case did qualify as a spouse despite having shared an unconventional, albeit long-term, relationship with the Deceased. The ruling can be seen as a sign that Canadian courts are utilizing an adaptable methodology toward the definition of "spouse", an approach which accounts for the various forms that spousal relationships can take in today's world.

The Importance of the Definition of 'Spouse' in Estate Litigation

The definition of a 'spouse' is of crucial importance in the context of estate litigation proceedings. Whether a litigant is seeking to qualify as a 'dependant' for the purpose of bringing a dependant support claim against an estate under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 ("SLRA"); or claiming an intestate entitlement to a deceased's estate - a litigant's case often hinges on whether or not that person, on the facts, meets the legal definition of a 'spouse'.

In Ontario, Part V of the SLRA defines a "dependant", for the purpose of dependant support claims, as a spouse, parent, child or sibling of the deceased to whom, immediately before death, the deceased was providing, or had a legal obligation to provide for. Section 57 of Part V further sets out that the definition of a "spouse" goes beyond a married couple and includes "two persons who are not married to each other and have cohabited for a period of not less than three years".

In British Columbia, the WESA also includes common law spouses in its definition of a spouse, noting that "two persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and (a) they were married to each other or (b) they had lived with each other in a marriage-like relationship for two years".

These provisions clearly expand the class of people who may qualify as a "spouse" beyond married couples. However, in the context of estate litigation, it is rarely clear whether a litigant meets the definition of a common law "spouse" and the question often requires a judicial analysis of the facts of each individual relationship together with the relevant legislative provisions. In these cases, the court will delve into the minutiae of the impugned relationship, and come to a determination whether, on the facts, the couple meets the definition of "spouse" as laid out in the relevant legislation.

This was the case in the recent decision by the BC Court of Appeal ("BCCA") in Robledano, where the court was tasked with determining whether the plaintiff and the deceased shared a "marriage-like" relationship for the purposes of the WESA.

Facts

Ms. Barbara Jacinto, the Deceased, died unexpectedly in April of 2014. Prior to her death, Barbara had been in an on-again-off-again relationship with her same-sex partner, the Plaintiff Ms. Maria Robledano for over 30 years.

Barbara had executed a Last Will and Testament in 2011 naming Maria as the sole beneficiary of her Estate. However, Barbara's original Will could not be located after she died. The presumption of revocation applied, and Barbara was deemed to have died intestate without a will (this serves an important lesson for all of us to ensure that the original copies of our Wills are held in a secure location).

Maria claimed that even without a Will she remained the sole intestate beneficiary of Barbara's estate, on account of being Barbara's spouse. One of Barbara's sisters, the Defendant Ms. Queano, argued that while Maria and Barbara may have once been spouses, they had not been living in a marriage-like relationship for the two years immediately prior to Barbara's death (2012-2014), and therefore they did not meet the definition of "spouse" as per the WESA.

The Impugned Relationship

Maria and Barbara became romantic in 1983 after meeting in the Philippines where they both resided. They moved to British Columbia together in 1988 where they eventually settled in Burnaby, purchased a property and lived together for the next decade in a manner that the trial judge defined as "like a traditional marriage".

However, Barbara and Maria's relationship changed drastically around the year 2000 when the couple split up, and both began seeing male partners in long-term romantic heterosexual relationships. Barbara even purchased a home with her male partner and discussed marrying him before he died in 2004.

In or around 2005, Maria and Barbara moved back in together and rekindled their romantic relationship. However, in 2010 the couple again split up after their relationship reached a "breaking point" which resulted in Maria leaving Barbara and beginning a romantic relationship with another woman that continued until December 2011.

By 2011, Maria and Barbara began to see each other again and tried to rebuild their relationship. They never again lived in the same residence, they did not intermingle their finances, however they maintained a close and regular relationship from 2011 until Barbara died in 2014, during which time they saw each other on a weekly basis.

The Ruling

Ms. Queano argued that the events of 2010 constituted a termination of any marriage-like relationship which Barbara and Maria may have once shared, while Maria contended that they remained in a spousal relationship up until Barbara's death, despite not living together full-time from 2011 - 2014.

The Court of Appeal noted that the definition of "spouse" as set out in the WESA provides an "imprecise and flexible legal standard" which the court must apply to the facts of a given case. Ultimately, the determination of whether the spousal relationship was terminated is a "judgement call" for the court in applying the broad legal standard to the factual circumstances of a given case.

The Court of Appeal ultimately upheld the trial judge's ruling that just because Maria and Barbara did not live under the same roof or intermingle their finances from 2011-2014, this did not necessarily mean they were not spouses. In this case, the details of their shared lifestyle, their interactions and expectations of one another was "very much spousal in nature". The Court confirmed that Maria was indeed Barbara's surviving spouse and therefore entitled to inherit Barbara's estate on an intestacy.

The BC court also confirmed that the seven factors (listed below) that are set out in the Ontario Superior Court's decision in Molodowich v Penttinen (1980), 1980 CanLII 1537 (ONSC) continue to be a leading authority in determining whether a couple were living in a spousal relationship. None of these factors are conclusive on their own, however, taken together they may assist a court in determining whether a couple "cohabited" in a "marriage-like" relationship for the purpose of the relevant legislation:

(1) Shelter:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?

(2) Sexual and Personal Behaviour:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?

(3) Services: What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?

(4) Social:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5) Societal: What was the attitude and conduct of the community towards each of them and as a couple?

(6) Support (Economic):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) Children: What was the attitude and conduct of the parties concerning children?

Takeaway

The BCCA's decision in Robledano is indicative of a general trend in Canadian jurisprudence toward a broadening of the types of relationships which courts will consider to be spousal relationships for the purpose of relevant legislation.

Courts take a flexible and nuanced approach in determining whether a couple are indeed spouses, as they apply the "imprecise" definitions contained in the pertinent legislation to the specific facts of each relationship. While the factors which courts may consider in determining whether a litigant qualifies as a "spouse" may be the same factors which courts applied in the 1980s (see: Molodowich), the types of relationships which courts will now accept as spousal relationships are broadened as the judiciary adapts to contemporary societal norms and expectations surrounding spousal bonds.
(ii)  KWOK V KWOK: IS SECTION 3 COUNSEL ALWAYS APPROPRIATE?
Kwok v. Kwok, 2019 ONSC 3549 (CanLII), http://canlii.ca/t/j0vr4
 
By Matthew Rendely
 
Introduction
 
Section 3 of the Substitute Decisions Act, 1992[1] ("SDA") is a complex legislative tool, though, on its face the legislation appears straightforward.
 
In summary, section 3 of the SDA provides the court with authority to direct the Public Guardian and Trustee (PGT) to arrange for legal representation to be provided for a person who does not have a lawyer, their capacity is in issue, and they are the subject of a proceeding under the SDA. The individual for who the appointment of a legal representative is made is deemed to have capacity to retain and instruct counsel. Furthermore, the legal fees for the appointed lawyer (colloquially known as "Section 3 Counsel") are paid from the property of the person for who Section 3 Counsel has been appointed to represent. Lastly, the legal fees for Section 3 Counsel can be assessed in the ordinary course under the Solicitors Act, by a litigation guardian or attorney for property if the person whose capacity is in question is deemed to be incapable of managing property.
 
Although the mechanism for the appointment of Section 3 Counsel appears to be clear, it is deficient of detail and legislative guideline. As such, the court in various circumstances has added to the developing case law in an attempt to clarify the bounds of this legislative tool.
 
The cases of Banton v Banton[2], Abrams v Abrams[3], Sylvester v Britton[4] and Miziolek v Miziolek[5] are some of the seminal decisions in which the court attempted to clarify the purpose, role, and function of Section 3 Counsel.
 
For a more comprehensive reference on the role of Section 3 Counsel, consider the resources available on the Government of Ontario website[6] and other papers and blogs published by Kimberly Whaley[7] and Daniel Paperny of WEL Partners.[8] Ms. Whaley's paper on Section 3 Counsel was referenced by the Honourable Justice Raikes in the decision of Sylvester v Britton at paragraph 63. Her paper was stated to be a succinct summary of the legal and legislative framework of the role of Section 3 Counsel.
 
Most recently, in the decision of Kwok v Kwok [9 ] , the Ontario Superior Court of Justice addressed the discretion afforded to the court under the SDA for determining when it is appropriate to direct the PGT to arrange for the appointment of Section 3 Counsel.
 
History
 
Jiefu Kwok ("Mr. Kwok") married Ellie Kwong ("Ms. Kwong") in 1987. They separated in 2008 but never divorced. During their marriage, they had one child, Derrick Kwok ("Derrick").
 
In 2011, Mr. Kwok was involved in two serious motor vehicle accidents in which he suffered a traumatic brain injury. As a result, Mr. Kwok was permanently unemployable.
 
In 2012, Mr. Kwok, by his litigation guardian, commenced two actions in relation to the motor vehicle accidents. In 2014, a capacity assessment of Mr. Kwok was obtained in the course of this litigation.
 
The capacity assessment of Mr. Kwok determined that he was incapable of personally taking care of himself regarding his health care, nutrition, shelter, clothing, hygiene, and safety, and that he was incapable of managing his property.
 
Following the completion of the capacity assessment, Derrick applied to be both the guardian of property and the person for his father, Mr. Kwok.
 
On April 7, 2015, the court issued a judgment declaring Mr. Kwok to be incapable of managing his property and personal care. Derrick was appointed at this time as the guardian of property and the person for his father.
 
The Present Guardianship Applications
 
This recent proceeding concerned two related applications in respect of the guardianship of property and guardianship of the person for Mr. Kwok.
 
The first application was for an order to terminate Derrick's appointment as guardian for property and guardian of the person for Mr. Kwok. In summary, Derrick sought to terminate his appointment because the difficulties associated with the management of his father's affairs was putting a strain on their personal relationship.
 
The second application was brought by Ms. Kwong to be appointed as guardian of property and guardian of the person for Mr. Kwok. Derrick supported his mother's application.
 
For the most part, the applications were non-contentious and on consent.
 
The PGT took no position with respect to Derrick's application to terminate his appointment as guardian.
 
The PGT did, however, take the position that before Ms. Kwong is to be appointed in Derrick's place that the court should order the appointment of Section 3 Counsel to represent Mr. Kwok and ascertain his wishes in accordance with section 3 of the SDA.
 
Issues
 
The PGT, took the position that the capacity assessment for Mr. Kwok done in 2014 was dated and that Mr. Kwok's capacity may have improved to the extent that a more limited guardianship might now be appropriate.
 
The PGT also pointed to some statements in Derrick's affidavit which might have indicated Mr. Kwok's opposition to the applications. Derrick stated that his father "'does not accept that he is not capable of taking care of himself or his finances' and wants to 'regain control over his finances."
 
Ms. Kwong and Derrick opposed the appointment of Section 3 Counsel. They argued that section 3 of the SDA is intended to apply in cases where capacity is at issue. Since there was a previous court order declaring Mr. Kwok to be incapable of managing his personal care and finances, his capacity is no longer in issue, and therefore, he cannot be deemed to be able to instruct counsel as required by section 3(1)(b) of the SDA.
 
Importantly, since section 3(2) of the SDA requires that the costs of Section 3 Counsel be paid by Mr. Kwok, Derrick and Ms. Kwong opposed the appointment of Section 3 Counsel because of the potential cost to Mr. Kwok.
 
Evidence
 
Mr. Kwok appeared in court when these applications were heard together. He was self-represented and given an opportunity by the application judge, Honourable Mister Justice Charney, to speak on his own behalf.
 
When asked by Justice Charney whether Mr. Kwok had any position to his son's application to be removed as his guardian and his wife's application to be appointed in place of his son, Mr. Kwok replied that "Ellie is OK with me. She takes care of me." [10]
 
In addition to Mr. Kwok's own evidence, a letter from his long term primary care physician was filed with the court. The letter from Dr. Robert Kwan dated May 24, 2019, confirmed that Mr. Kwok had suffered a traumatic brain injury and that "he will need, long term, a competent individual to oversee and manage his activities especially those pertaining to financial and legal matters." [11]
 
Justice Charney stated in his decision that while Dr. Kwan is not a qualified assessor of capacity under the SDA, his letter is evidence that there has been no change to Mr. Kwok's condition since the assessment in 2014. Furthermore, the letter corroborated the evidence about the concerns for Mr. Kwok's capacity in Derrick and Ms. Kwong's respective affidavits.
 
Conclusions
 
Justice Charney made the following determinations:
  1. Section 3 of the SDA does not make the appointment of Section 3 Counsel mandatory, and the court must assess the specific facts and legal issues in deciding whether such appointment is appropriate in a specific case.
  2. The appointment of Section 3 Counsel is an important safeguard to protect the dignity, privacy and legal rights of persons alleged to be incapable: see Abrams v Abrams at paras 48 and 49.
  3. The court has authority to appoint Section 3 Counsel even in cases in which there has already been a capacity assessment or court order declaring a person to be incapable. 
Accordingly, Justice Charney assessed the specific facts and legal issues in this case and determined that it was not an appropriate case to direct that Section 3 Counsel be appointed for Mr. Kwok.
 
In summary, Justice Charney determined that Section 3 Counsel should not be appointed for the following reasons:
  1. There was no dispute between Mr. Kwok's only relatives about who should act as his guardian. Both Derrick and Ms. Kwong were in agreement. As such, there were no competing claims which required legal representation to determine which side Mr. Kwok would support.
  2. There is no real evidentiary basis to question the continued validity of the 2014 capacity assessment.
  3. Dr. Kwan's evidence confirmed that Mr. Kwok's condition has not improved since the 2014 capacity assessment.
  4. The order requested by Ms. Kwong maintains the status quo of the judgment declaring Mr. Kwok incapable of managing his property and personal care which was made on April 7, 2015.
  5. Mr. Kwok attended court and, to the extent that he was capable of expressing his wishes, unequivocally explained that he supported the appointment of Ms. Kwong as his guardian. 
Takeaways
 
The appointment of Section 3 Counsel is an important legislative tool which is designed to protect the rights and interests of vulnerable persons. The court has discretion to assess the circumstances of each specific case to determine when such an appointment is necessary and in the interest of the individual whose capacity is in questions. Section 3 counsel has a role in ensuring that the court processes and procedure are fair and equitable where there is a vulnerable person whose capacity is being addressed. We know that there are different factors and analysis applied to determine different decisional capacities, and one finding of incapacity to do a certain task ought not to determine other capacities. Importantly, this legislative tool is designed to give a voice to the individual whose issues are before the court and it is an important appointment to maintain, preserve and protect the autonomy of the person with the benefit of legal representation.


[1] SO 1992, c 30
[2] [1998] OJ No 3528 (QL), 1998 CanLII 14926 (ONSC)
[3] 2008 CanLII 67884 (ONSC)
[4] 2018 ONSC 6620 (CanLII)
[5] 2019 ONSC 2841 (CanLII)
[6] Government of Ontario, Ministry of the Attorney General, "Ontario Information Update: Duty of the Public Guardian and Trustee to Arrange Legal Representation Under Section 3 of the Substitute Decisions Act, 1992", available at http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/legalrepduty.pdf
[7] Kimberly Whaley and Ameena Sultan, Advocates' Quarterly, "Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992", Vol. 40, p. 408-469, available at http://welpartners.com/resources/WEL_2012_40_Adv_Q_408.pdf
[8] Daniel Paperny, "Section 3 Counsel and the Rebuttable Presumption of Capacity to Instruct", available at http://welpartners.com/blog/2019/01/section-3-counsel-and-the-rebuttable-presumption-of-capacity-to-instruct/; Daniel Paperny, "A Moving Target: Capacity, Legal Representation, and the Ability to Instruct Section 3 Counsel", available at http://welpartners.com/blog/2018/11/a-moving-target-capacity-legal-representation-and-the-ability-to-instruct-section-3-counsel/#_ftn1
[9] 2019 ONSC 3549 (CanLII)
[10] Ibid at para 16
[11] Ibid at para 17
(iii)  TIDBITS FROM THE BENCH: UPDATE FROM THE LATEST ESTATES LIST USER COMMITTEE MEETING
1. Errors in Probate Applications
 
It is an increasing and unfortunate common occurrence that applications for probate are filed with the Estates Court with errors. To assist, the Attorney General's office has published a guide on avoiding common errors in estate applications. 

 
2. Can a Statement of Claim be Issued on the Toronto Estates List and, if so, When?

Pursuant to Rule 75.06(3)(e) of the Rules of Civil Procedure, an order for directions that a plaintiff file and serve a statement of claim must be sought and obtained before a statement of claim will be accepted for filing with the Estates Court in Toronto. The order for directions is to be sought by application.
 
3. EAT Reimbursement

Take note, the procedure for reimbursement of EAT has changed.  For information, please access the Ministry of Finance website .
(iv)   POA DISPUTE TIPS FROM THE ADVOCATES' SOCIETY PD
By Matthew Rendely

On September 18, 2019, I attended at the Advocates' Society's presentation of "Capable or Not? How to Effectively Litigate and Mediate a Power of Attorney Dispute".

Several esteemed members of the estates bar and bench participated in panel discussions about best practices in powers of attorney disputes, including, the Honourable Regional Senior Justice McEwen, the Honourable Justice Pattillo, and the Honourable Justice O'Connor (formerly of the Ontario Court of Appeal).

The following are the top 10 takeaways from the presentation for counsel to consider when litigating and mediating a power of attorney dispute:
  1. When the capacity of a grantor whose power(s) of attorney are the subject of litigation is in question, counsel should be appointed for the grantor in accordance with Section 3 of the Substitute Decisions Act (e.g. "Section 3 Counsel") and the Public Guardian and Trustee (PGT) contacted.
     
  2. Section 3 Counsel helps to bring stability to the litigation, and assists in expressing the wishes and instructions of the grantor whose personal and property rights are in question and subject to restriction.
     
  3. Any lawyer acting as Section 3 Counsel (for a grantor in a power of attorney dispute or otherwise) must be aware of their duties to their client and to the Court. Justice Cullity's comments at paragraph 121 of Banton v Banton, [1998] OJ No 3528 (QL) were noted to be of particular assistance in this regard.
     
  4. A capacity assessment can be useful evidence depending on how it was procured and who wrote it. If procured in contemplation of litigation, the test in rule 53.03 of the Rules of Civil Procedure will need to be met. Justice Penny's decision in Adler v Gregor, 2019 ONSC 3037 (CanLII) was noted to be required reading for any lawyer litigating or mediating a power of attorney dispute, and in particular, when relying upon a capacity assessment as evidence in litigation.
     
  5. Be considerate of any physical or cognitive limitations of the grantor in participating in lengthy mediation. Two or more half-day mediation sessions may be more useful than one day of a lengthy mediation.
     
  6. Mediation briefs for power of attorney disputes should not be designed to "win the case" but to assist the mediator in understanding all relevant issues and to demonstrate a willingness to compromise. Avoid being inflammatory!
     
  7. Aides such as a family tree, chronology and corporate organization chart are useful tools to be filed in mediation materials and pleadings.
     
  8. A factum filed with the Estates Court in Toronto must be 25 pages or less unless leave is sought and granted. Leave will only be granted in limited circumstances. Less is more!
     
  9. Costs of a power of attorney litigation will rarely (if never) be payable from the property of the grantor. Lawyers must be sure to advise their clients that they litigate at their own cost and peril.
     
  10. Although not addressed at the presentation, a lawyer must be mindful of seeking judicial approval of any settlement that pertains to a grantor whose capacity is in question.
It is most interesting to note that some of the justices who participated in the panel discussions explained that power of attorney disputes have been on the rise in Toronto year after year.

Since the government of Ontario has reported that seniors (65 years and older) are the fastest growing age group in Ontario, this growing trend in power of attorney disputes is most certainly only to increase further. As such, it is incumbent upon good counsel to be aware of the nature of these disputes and how to best resolve them, either by way of litigation or mediation.

IV. UPCOMING EVENTS
GTA Accountants and GTA Finance Network
Elder Abuse
October 3, 2019
Speaker: Kimberly Whaley

Law Society of Ontario
22nd Estates and Trusts Summit (Day One)
October 16, 2019
Speaker: Kimberly Whaley
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 1, 2019
Speaker: Matthew Rendely and Daniel Paperny

Summit on Aging: Keeping Me Safe - Capacity, Risk & Medical Assistance in Dying (MAID) - Peterborough, Ontario
November 6, 2019
Speaker: Kimberly Whaley

2019 Isaac Pitblado Lectures - Winnipeg, Manitoba
Predatory Marriages
November 8, 2019
Speaker: Kimberly Whaley and Albert Oosterhoff

CCEL BC
Bridging the Gap, Elder Law for Everyone
Elder Abuse, Civil and Criminal Remedies
November 14-15, 2019
Speaker: Kimberly Whaley

Ontario Bar Association: Ethics, Civility and Professional Responsibility in the Courtroom, Mediation and Beyond

November 22, 2019
Speaker: Kimberly Whaley
https://www.cbapd.org/details_en.aspx?id=ON_ON19INS14C

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 6, 2019
Speaker: Alex Swabuk and Bryan Gilmartin

Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Family Law Matters
December 10, 2019
Speaker: Michael Marra

Institute 2020 Elder Law Section Program
Rights and Limitations on an Attorney Under a Power of Attorney
February 2020
Chairs: Kimberly Whaley and Albert Oosterhoff

Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Real Estate Matters
February 26, 2020
Speaker: Matthew Rendely
 
Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Corporate Client Matters
March 18, 2020
Speaker: Kimberly Whaley
http://www.cbapd.org/details_en.aspx?id=ON_ON20ELD02T 

V. IN CASE YOU MISSED IT - RECENT BLOG POSTS
Webb v. Belway: Proper and Adequate Support for a Common Law Spouse When Adequate Provisions Not Made

Family Law Act Disclosure Obligations for Estate Trustees

Costs Awarded Personally Against a Lawyer for Pursuing an Unattainable Goal on Behalf of the Clients and for Breaching the Rules of Professional Conduct

Severing a Joint Tenancy by Audio Recording ?

New book: BOBBY GETS BUBKES, Navigating the Sibling Estate Fight by Charles Ticker

The Tapestry of Unfortunate Family Disputes: Gauthier et al v. Gauthier
 

Canadian Securities Regulators and Vulnerable Clients

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