PART 1.  ESTATES ADMINISTRATION TAX ACT

Please note the Estates Office at Toronto will provide a bookmark handout to estate clients that advise the parties of the new requirements.

The processing procedures respecting applications for Certificates of Appointment of Estate Trustee will not change.

Notably, the new regulations under section 4.1(2) of the Estate Administration Tax Act, require the following:

Return under s. 4.1 (2) of the Act

3.  (1)  Information about a deceased person that is required under subsection 4.1 (2) of the Act must be given to the Minister by the estate representative, in a return approved by the Minister, no later than 90 days after an estate certificate is issued to the estate representative.

(2)  The return must contain the following information about the deceased person:

1. Name.

2. Address of fixed place of abode.

3. Date of birth or, if not known, the approximate date or year of birth.

4. Date of death.

5. A complete list of the assets of the deceased person used to determine the value of the estate, including the following information with respect to each asset:

i. The actual value of the asset or, if the actual value is unavailable, the estimated value of the asset at the time of the deceased person's death.

ii. If the asset is real property,

A. the full address of the real property, including, where applicable, the street number, street name, street direction, unit number, rural route number, town or city, and postal code,

B. the actual value of any encumbrances on the real property,

C. the assessment roll number of the real property that is created or used under the Assessment Act, and

D. the property identifier mentioned in subsection 141 (2) of the Land Titles Act or subsection 21 (2) of the Registry Act, if any, of the real property.

iii. If the asset is cash (including cash on deposit with a Canadian or foreign bank, a broker, a credit union or caisse populaire, a loan corporation or a trust corporation), a guaranteed investment certificate, a loan receivable, a security (including common shares, preferred shares, bonds, treasury bills and mutual funds), a contract of insurance without a named beneficiary, a derivative (including options, futures contracts, rights or warrants), an interest in a partnership or any other investment, a full description of the asset, including,

A. the type of asset,

B. the number of units held at the time of the deceased person's death, if applicable,

C. other particulars of the asset, such as the particular series of bonds or the particular class of shares,

D. the name and contact information of the deceased person's adviser, dealer, financial institution or other person holding the asset on behalf of the deceased person, if applicable, and

E. the account number in relation to the asset assigned by the person or institution referred to in sub-subparagraph D, if applicable.

iv. If the asset is not an asset referred to in subparagraph ii or iii, detailed information about the asset, including the type of asset and other particulars of the asset.

v. If the deceased person was known by a name that is different than the name set out in paragraph 1 and if the asset is registered or held under that other name, the asset and the other name of the deceased person.

vi. If the asset is owned by the deceased person as tenant-in-common, the asset and the percentage that is owned by the deceased person at the time of death.

6. The amount of tax owing or paid under section 2 of the Act by the estate of the deceased person or the amount deposited under section 3 of the Act by the applicant referred to in that section.

7. The name and contact information of every estate representative of the deceased person.

8. The address of the court where the application for a certificate of appointment of estate trustee was made.

9. The type of application that was made by the estate representative in respect of the estate of the deceased person under Rule 74.04, 74.05, 74.05.1, 74.08 or 74.09 of the Rules of Civil Procedure.

10. The court file number that is assigned to the application referred to in paragraph 9.

11. The date on which the estate certificate was issued to the estate representative.

12. If the tax or deposit was calculated based on the estimated value of the estate, the date on which the estate representative gave an undertaking required under subsection 3 (4) of the Act and a copy of the undertaking.

13. If the Superior Court of Justice issued the estate certificate under subrule 74.13 (3) of the Rules of Civil Procedure, without payment of a deposit required under section 3 of the Act,

i. a copy of the order that was obtained under subsection 4 (1) of the Act, and

ii. details about the security furnished to the court under subsection 4 (2) of the Act.

14. Any other information about the deceased person that is necessary for the determination of the amount of tax owing or paid under section 2 of the Act.

(3)  If any assets described in subparagraph 5 iii of subsection (2) are held by an adviser, dealer, financial institution or other person on behalf of the deceased person, the return may include the following information about those assets instead of the information required under subparagraphs 5 i and iii of subsection (2) in respect of those assets:

1. The name and contact information of the adviser, dealer, financial institution or other person who holds those assets.

2. The account number or numbers associated with the adviser, dealer, financial institution or other person in relation to those assets.

3. The total value of all of the assets within each of the accounts referred to in paragraph 2.

Requirement to update information, amended return

4.  (1)  If the estate representative becomes aware that any information described in paragraph 5, 6 or 14 of subsection 3 (2) or in subsection 3 (3) that was given in the return is incorrect or incomplete, the estate representative shall give the Minister a revised return containing updated information, including the reason for updating the information.

(2)  The revised return under subsection (1) must be given no later than 30 days after the estate representative becomes aware that the information given is incorrect or incomplete.

(3)  A revised return under subsection (1) is not required if the estate representative becomes aware of the incorrect or incomplete information after the fourth anniversary of the day tax became payable.

(4)  Despite subsections (1), (2) and (3), if a statement disclosing subsequently discovered property of the estate is delivered under subsection 32 (2) of the Estates Act, the estate representative shall give the Minister, no later than 30 days after the statement is delivered, a revised return with particulars about the subsequently discovered property.

Requirement to update information, notify Minister

5.  If the estate representative becomes aware that any information described in paragraph 1, 2, 3, 4, 7, 8, 9, 10, 11, 12 or 13 of subsection 3 (2) that was given in the return is incorrect or incomplete, the estate representative shall notify the Minister in writing of the updated information no later than 30 days after the estate representative becomes aware that the information given is incorrect or incomplete.

Additional information, refund received

6.  If a full or partial refund of a deposit or tax imposed under the Act is received by the estate representative after giving the return under section 3, the estate representative shall, no later than 30 days after the refund is received, give the Minister a revised return with particulars about the refund.

Additional information, additional tax or deposit

7.  If an additional tax imposed under the Act is paid or an additional amount is deposited by the estate representative after giving the return under section 3, the estate representative shall, no later than 30 days after the payment or the deposit is made, give the Minister a revised return with particulars about the payment or amount deposited.

Additional information, undertaking under s. 4 (3) of the Act

8.  If the estate representative gives an undertaking described in subsection 4 (3) of the Act with respect to the estate of the deceased person, the estate representative shall, no later than 30 days after fulfilling the undertaking, give the Minister a revised return with particulars about the fulfilment of the undertaking and any additional tax paid.

Notably, all estate trustees as of January 1, 2015, must file an estate information return to be received by the Ministry of Finance within 90 calendar days after a Certificate of Appointment of Estate Trustee has been issued.

The legislation does not apply to any certificates applied for prior to January 1, 2015.

The estate information return, its accompanying guide and additional information are available at: Ontario.ca/estateadmintax

For a review of and further information on estate administration tax and related matters, please access the following links:

Ontario Regulation 310/14

Ontario, Ministry of Finance: New Information for Estate Trustees

Estate Administration Tax 

PART 2. Recap on Important Law Review Initiatives of 2014

i. The Law Commission of Ontario, RDSP Project

On November 27, 2014, the Law Commission of Ontario released its final report in its capacity and legal representation for the Federal RDSP Project. 

The Government of Ontario requested that the LCO undertake a review of how adults with disability might be better enable to participate in the Registered Disability Savings Plan (RDSP). The RDSP is a savings vehicle created by the federal government to assist persons with disability with long-term financial security. The final report presents recommendations respecting the creation of a streamline process to appoint and "RDSP legal representatives" for adults seeking access to the RDSP who did not have legal capacity to establish a plan themselves. 

Link to the final report

ii. Law Commission of Ontario, Legal Capacity, Decision-Making and Guardianship Project

Earlier last year on June 26, 2014, the LCO released its discussion paper in its legal capacity, decision-making guardianship project.  The consultation process ended in December 2014. We await the results and recommendations of the LCO in early 2015. 

Link to the report

PART  3. Case Update - Case Update: Leibel v. Leibel

http://canlii.ca/t/g8lzn

In November 2014, Kimberly Whaley wrote on the decision in Leibel:

View blog post

Ameena Sultan also wrote on the decision in September 2014:

View blog post

Subsequently, the costs decision in Leibel v. Leibel, http://canlii.ca/t/gf8sq, was released more recently, in which the Court made a blended costs award in favour of the successful respondents/moving parties in a motion to dismiss a Will challenge claim as being statute-barred.[1]  The applicant was required to pay the majority of the costs personally and the remainder of the moving parties' costs were ordered to be paid out of the Estate. [2]

As a reminder, this case involved a motion to strike a claim in which Justice Greer (as she then was) found that a son's challenge against his mother's estate was barred pursuant to s.4 and 5 of the Limitations Act, as he did not bring his claim until two years after his mother's death. Justice Greer also found his Will challenge claim was barred by the equitable doctrines of estoppel by convention and estoppel by representation.[3]

The Parties' Positions on Costs

The successful moving parties were made up of two groups represented by separate counsel, as they had different allegations to respond to in the son's claim and represented separate interests. Justice Greer referred to them as the "Lewis Parties" and the "Leibel Parties". Both the Lewis and Leibel Parties sought their costs on a substantial indemnity basis from the applicant son personally.

The son argued that both his costs and the costs of the moving parties should be paid out of the Estate; arguing that it was the Leibel and Lewis Parties who brought the motion to strike his claim and it was reasonable that he oppose it and that it raised novel issues of law. He also argued that the costs sought were inflated as there was a duplication of efforts between the two sets of parties.

The Court's Ruling

Justice Greer found that the son was personally liable for the costs of the moving parties:

In my view, this is not a case where there was a drafting error in the testator's Will that needed correcting. In that case, the Costs would properly be paid out of the Estate. I adopt the reasoning in McDougald Estate, that Costs in estate litigation are subject to the general civil regime that the losing party should bear the Costs if there are no public policy considerations otherwise present. . .In addition, I found it unreasonable for [the son] to try to bring on a Will challenge at this late date in the administration of the Estate, and given that he had already benefitted. . .I find that [the son] as the losing party on the Motion, should bear and pay the Costs of both sets of Respondents, as the moving parties. [. . .] I am satisfied that this is not a case where the Costs of the moving parties, which were divided into 2 groups, namely the Lewis parties and the Leibel parties, should only be awarded a lump sum to be divided between them as they may agree. There were good reasons why these 2 groups required separate representation.[4]

In deciding on the quantum of the costs award Justice Greer referred to the serious allegations of misconduct that the son made, as well as to the complexity of the Estate and the amounts involved. Justice Greer did not find that the case warranted substantial indemnity costs, as "[a]lthough the Motion was difficult and contentious; [the son] had a right to oppose it. I do not see this as a case where there should be an award of Costs on anything other than a Partial Indemnity scale".[5] The son was ordered to pay costs on a partial indemnity basis of $108,000.00 for the Lewis Parties and $77,000.00 for the Leibel Parties.

However, Justice Greer went on to find that "the balance of the Costs of the Lewis parties and the Leibel parties shall be paid to them on a Substantial Indemnity basis out of the residue of the Estate, based on the Costs principles set out in Sawdon Estate v. Sawdon, 2014 ONCA 101."[6] Sawdon held that "blended" costs awards (where partial indemnity costs are paid by the losing party and the balance of the costs are paid by the Estate) are available in estate litigation. Such blended costs awards "respect public policy considerations" and "maintain the discipline" needed in costs in estate litigation.[7]

PART 4.  Elder Law Issues: Food for Thought, Comments by Lionel Tupman

Here is a hypothetical scenario:  a parent suffers a fall at home.  When discovered by her child, she refuses to permit her child to call for emergency medical care, and she refuses to be lifted off the floor.  Rather, she instructs her child to leave her on the floor, which he dutifully does, for several days, until she dies as a result of her injuries.

If this scenario sounds familiar to you, it is because it happened very recently in Winnipeg.  In December, 2014, Winnipeg musician Ron Siwicki (the accused) was arrested and charged with criminal negligence causing death and failing to provide the necessities of life to his elderly mother, who suffered a fall in her house and was left to die on the floor by the accused.  According to the accused, it was his mother's expressed intention to be left to die on the floor, and she specifically refused medical attention.

By many accounts in the media, the accused has been characterized as a dutiful and loving son and caregiver to his mother-it being somewhat uncharacteristic for him, therefore to occasion, through his omission, her death.

Some media sources have however characterized the accused's actions as a clear case of elder abuse.  Though the case is subject to a publication ban, and as such, few details relating to the case are available, it appears the Crown intends to proceed with the charges against the accused on the factual basis that he had an obligation as his mother's caregiver to provide assistance to her in relation to her fall and injury.

Several salient considerations present in this case which may ultimately be determinative of the outcome of the charges against the accused.  First, regrettably for the accused, as far as the media is aware at the present, the accused was the only person who was informed by his mother of her wish to die and her refusal to receive medical treatment for her injuries sustained during her fall.  At the very least, some evidence which corroborated the accused's story might be of assistance to him, notwithstanding that such evidence would not be dispositive of the more complex ethical and legal questions which arise secondarily.

Some media sources have suggested that patients who wish to receive palliative care may receive such care from medical professionals so that they may die in the comfort of hospitals while receiving pain alleviating medications.  The same media sources have suggested that, clearly, the accused and his mother must have been unaware of the utility of such life-ending resources.

Certainly, the benefit of palliative care in a hospital setting is that the person wishing to die will of necessity be assessed as to their state of mind and their ability to consent to receiving such treatment.  One of the many problems with the type of death suffered by the deceased in this case is that no one can say whether the deceased (a) actually expressed her intention to die; or (b) was competent to make such a decision on her own.

Assuming that both (a) and (b) referred to in the previous paragraph are true, then it begs the question what authority, if any, would the accused have had, in fact, to call for help for his mother.  A capable person may refuse to receive potentially lifesaving treatment even if doing so is contrary to medical advice.  As a matter of fact, medical professionals who administer lifesaving treatment to capable persons against their wishes may be liable for battery.

However, assuming that (a) referred to above is true and (b) above is not true, i.e., the deceased was not capable to make decisions regarding the care she ought to receive, the accused's obligations vis-a-vis his mother are still not entirely clear.  For example, had the deceased been found to be incapable by a medical assessor?  Had the accused been vested with the authority to make medical decisions for the deceased as an attorney for personal care?

At this point, we do not know as details are scarce.

What is clear from this case is that if (a) and (b) were true, the deceased may have had a right to refuse treatment and perhaps even a right to refuse to be touched; secure, as she was, in her right to bodily integrity.  Whether a right to die exists under Canadian law is an issue which remains to be determined.  With the Supreme Court of Canada poised to deliver in early 2015 what some observers have predicted will be a landmark decision regarding assisted suicide in Canada, the Siwicki case may be a tragic consequence of the lack of clarity in Canadian law respecting this controversial issue which has persisted to this date. 

Whether death in a hospital bed or on a floor is preferable to a capable person is perhaps not for a court or anyone else to decide. But clarification is required, not only for the protection of elderly persons, capable or incapable, but for the edification and protection of their care-givers or other.  At this point we cannot say whether the accused was right or wrong to allow his mother to die (in fact, we are largely unaware of all of the facts and circumstances as to what actually happened) the way she did-but that is not the answer we should be seeking.  The answer we should be seeking is one which clarifies the murky waters of end-of-life decision and in particular in scenarios such as this. The promotion of respect for the rights of vulnerable persons, and which permit them to live and to die with dignity, is an issue our policy makers are still largely divided on.

We look forward to learning the outcome of this case which on its face presents an abuse which ought not to be permitted.