WEL NEWSLETTER February 2023, Vol. 12, No. 11

Dear Kenneth,


It’s mid-February, which means, we are truly surviving the dark months of winter, and soon we will be in our much-coveted Canadian springtime! Hold on a little longer…. you can do it!

 

In the month of February, every year, I feel challenged for inspiration, so I tried to be proactive this time-I am taking a Brunch Course at George Brown College Cooking School - it’s fun! I highly recommend it. An amusing aside, wearing the Chef’s outfit, replete with hat. They take these courses very seriously!

 

I read two books last month, SURRENDER, 40 songs, our story, by BONO, and Prince Harry’s, SPARE. Both were fun and insightful and non-law reprieves! My friend Clare recommended TOMORROW, And TOMORROW, And TOMORROW, by Gabrielle Zevin, but of course it’s not on any bookshelf in the city and now is back ordered at Indigo online. So all in good time… Finally, I ordered on the recommendation of a law friend, the book, Reckoning with Racism: Police, Judges, and the RDS Case, by Constance Backhouse. It seems my reading list is full of exciting reads, now, the only challenge remains, making the time.

 

My mom turned 80 last Monday, we spent the day together and more than several times during the course of our mother-daughter day, Mom said-I can’t believe I am 80, followed by at least once, that’s a big number! I have to say, I said those same words to myself, in my inside voice -several times. The reality is that she is an active, energetic, 80 year old, and she is my mom and so you just take for granted that life continues as it is….. but the number does mess with me psychologically as I  imagine it does with her. I hope we have another good couple of decades together. These certainties and limitations of life and death come with more than a bit of angst for everyone. SO, Mom if you are reading, Happy Birthday and I love you to bits.

 

And last, but not least, Happy Valentine’s Day! Happy day of LOVE to all of you. Love your friends, colleagues, pets and strangers…. spread the LOVE far and wide. Oh, and watch a rom-com! Here are "Kim & Sam’s Top 5 ‘feel- good' Rom-Coms":

 

1.  13 Going On 30 (2004): A classic for those who want a throwback to the traditional early 2000's rom-com. A light-hearted, friends to lovers’ film where relationships are defined by even the smallest choices. If you haven't seen it, because you've been under a rock or frozen in a submerged block of ice for the past 19 years, this is the perfect film for enjoyers of the romantic comedy. If you have seen it, I guarantee the nostalgia factor is worth a re-watch. 

 

2.  Love, Rosie (2014): A perfect will-they-won't-they love story (in Sam’s opinion)! This movie spans years as the characters experience the challenges of growing up, growing apart, and coming back together. Equal parts laughter and heart-warming, this film is the perfect addition to a cozy Valentine's Day in. 

 

3.  Hitch (2005): Whether it be the art of the pick-up, or the art of romance that gave Hitch his reputation, this film is a romantic comedy must watch. If you're in the mood to watch some comical flirting fumbles, and sweet love story plotlines, this is the film for you. 

 

4.  Dirty Dancing (1987): While this film isn't a comedy, per se, I have seldom felt anything other than contented after watching it. This movie celebrates many of the romance archetypes: a nearly love at first sight meet cute, enemies to lovers encouraged to work together due to proximity and circumstance, and an element of forbidden romance. The perfect recipe for a not-so-guilty pleasure. 

 

5.  Flipped (2010): This is a sweet and touching film that follows two kids who navigate their first love (quite poorly). An entertaining account of childish obstinance and exploration of how to know if you're in love. A personal favorite of mine (Sam’s), this is one I can say for sure I'll be watching Valentine's Day! 

 

Notable mention: Not listed on its own only because, well, it's in the name! Valentine's Day (2010) provides you with everything cheesy and touching about this holiday and can never be considered a bad choice, or so sayeth Kim!

 

As ever enjoy the read,

 

Kim

I. WEL NEWS

1.  OSGOODE PROFESSIONAL DEVELOPMENT

On April 19, 2023, Bryan Gilmartin will be speaking on Powers of Attorney and Incapacity Planning as part of the Powers of Attorney and Guardianship: Non-Contentious and Contentious Matters program hosted by Osgoode Professional Development.

2.  COLLOQUIUM LEGAL EDUCATION CONFERENCE, SUDBURY

On October 18 – 20, 2023, Bryan Gilmartin is very excited and honored to have been invited to chair the Estate Program at the Colloquium Legal Education Conference in Sudbury, Ontario. We look forward to a great program!

3.  YORK UNIVERSITY, OSGOODE HALL

Nimali Gamage, Goddard Gamage LLP, invited Kim to teach her students in the York University Elder Law Course this coming week on the topic of, Predatory Marriages.

4.  ELDER LAW DAY, MARCH 28, 2023

Matthew Rendely will be co-chairing the CBA Elder Law Day program with Kim Gale on March 28, 2023.


Program info

II. SHOUT OUTS

THE HONOURABLE GEORGE R. STRATHY AWARD - ANNOUNCEMENT AND GIFT CONTRIBUTION REQUEST

WEL congratulates the Honourable George R. Strathy, our retired Chief Justice of Ontario on receiving a special award in his name in recognition of students who have contributed to health and wellness and a sense of belonging in the Lincoln Alexander Law community from the Lincoln Alexander School of Law. This award spearheaded by Shawn Richard, Advocate, is being established to honour our former Chief Justice Strathy’s dedication and contribution to the legal profession and the community at large.


In celebration of former Chief Justice Strathy’s indelible contributions to the law – and thanks to the leadership of Shawn Richard – the Lincoln Alexander School of Law at Toronto Metropolitan University has established The Honourable George R. Strathy Award.


Throughout his distinguished career, as a litigator, judge of the Ontario Superior Court of Justice and later the Court of Appeal for Ontario, the former Chief Justice has inspired students, lawyers, and the broader legal community – shaping a legacy deeply aligned with the values of Lincoln Alexander Law. As an advocate our Honourable George Strathy has actively strengthened diversity in the Bar and the Bench, he has helped to modernize courts, and has prioritized the mental health of legal professionals. This award is an opportunity to build on his Honour’s legacy by supporting the next generation of legal professionals through a gift to The Honourable George R. Strathy Award.


Commencing in Fall 2023, this award will recognize law students requiring financial need, who have demonstrated academic excellence, and who have actively contributed to health, wellness, and belonging in the Lincoln Alexander Law community. To make a gift, visit our online giving page and designate your donation to The Honourable George R. Strathy Award. If you need more information kindly contact MaryClaire Brooks maryclaire.brooks@torontomu.ca 647-643-4886.

A. SHAWN RICHARD, TEP

WEL congratulates A. Shawn Richard on receiving his full TEP accreditation from STEP.

III. WEL EATS

WEL EATS – CUCINA BUCA, YONGE & ST. CLAIR

By Evan Pernica 


https://cucinabuca.ca/


After consistently teasing locals and passerby’s alike throughout COVID, the long-awaited Cucina Buca has opened its doors at the corner of St. Clair and Yonge. 

 

For more than 10 years, the Buca brand has been one the city’s go-to destinations for spectacular, delicious, and sophisticated nights out. Helmed by King Street Food Company who are responsible for some of the city’s most iconic restaurants like Jacobs & Co. and La Banane, it’s no surprise that Buca has been consistently rated one of Canada’s top restaurants by critics since its opening.

 

Cucina Buca isn’t like your traditional Buca. Cucina, or “Ku-Chee-Nah” means cooking, cuisine and kitchen. According to the brand, “Cucina Buca is a modern classic built on the perfect balance of old world and new.”

 

As you enter Cucina Buca, you’ll feel immediate warmth. Soft wood touches throughout the space make it feel unfussy and welcoming, yet still modern and sophisticated. The space was designed by Constantino Design Studio which also designed iconic restaurants like Osteria Giulia, Giulietta and Biscotteria Forno Cultura. Refined touches such as handmade flatware, spacious windows and towering fiddle-leaf fig trees further lend themselves to the elegant space. The restaurant also has two floors, with a show-stopping staircase up to the mezzanine if you’re a people watcher. 

 

Reminiscent of a classic Italian Sunday dinner, the menu was designed for sharing. It's inventive but built on classics and executed beautifully. Taking notes from other Buca locations, the menu is ever-changing using locally sourced ingredients. 

 

Our table started with the Nodini (bread knots) and Salumi Affettati. Although described as bread knots, “Nodini” is not the typical garlic knots you find at The Olive Garden. Served warm, and topped with rosemary and garlic, the dish had a crispy shell that lends itself to soft dough hiding inside. 

The showstopper of the meal was the “Mezze Maniche All’ Amatriciana” made with pecorino romano, guanciale, DOP tomato and loads of black pepper. It was rich, creamy, and crafted with fine quality. Other dishes that stood out for our table included the Focaccia Stracchino & Terre Di San Mauro Olive Oil and The Cannelloni. Don’t forget to finish off your meal with freshly brewed espresso to wash it all down.

Overall, Cucina Buca is a delicious addition to the Yonge and St Clair area. If you’re looking for classic Italian fare and high-quality service, stop by Cucina Buca.

IV. LAW REVIEW

(i) FRAUDULENT CALUMNY

By Albert H. Oosterhoff


1. Introduction


Huh? Say what? If the concept fraudulent calumny is unfamiliar to you that is not surprising. It is not one that has been used on this side of the Atlantic to my knowledge. But it has gained some currency in England and Wales. And so it is good to explore it a bit. The Oxford English Dictionary defines calumny as ‘malicious misrepresentation, slander; a false charge, a slanderous statement or report’. And thus, the phrase fraudulent calumny is used to describe the flagitious acts of a person who persuades a testator by using slander and other false statements that she should disinherit an heir (and make him an heir in a new will). In that way the person overpowers the will of the testator, and his acts can therefore be considered to be undue influence. But they can also be regarded as fraud. In either case, the person’s acts will invalidate the testamentary document. Those are the ways in which we have addressed the problem in Canada and in England as well. Clearly there is therefore an overlap between undue influence and fraud. As Lord Cranworth said in Boyse v Cranborough,[1] a will can be found invalid ‘either by coercion or by fraud’. In other words, the court can refuse probate of a will obtained by fraud even if you cannot prove coercion.


As mentioned above, in England and Wales courts have called such fraudulent acts to be fraudulent calumny. I am aware of only two cases that have used the term: Edwards v Edwards[2] and the recent decision, Whittle v Whittle.[3] This blog is a comment on the Whittle case, and it relies heavily on Edwards. However, the facts in Whittle are almost identical to those in Edwards, so it is not necessary to summarize them in this blog, except to note that the court in Edwards concluded that one son ‘deliberately poisoned his mother’s mind by making deliberately untruthful accusations against’ another son and his wife and did so with the help of a third party. Also, as distinct from Whittle in Edwards the court heard evidence in great detail from both sides.


2. Facts


Gerald Whittle died 7 December 2016 at the age of 92 while he was living in a care home and was suffering from leukaemia, diabetes, and other health problems. He was survived by two children, David and Sonia. He made his will on 15 November 2016. It appointed Sonia and her partner, Ray Spicer, executors. The will made a bequest to David but left the residuary estate equally to Sonia and Ray. The will contained a clause stating that the testator was disinheriting David (except for the bequest) ‘because we have become estranged’.


David disputed the will on the ground that it was procured by Sonia and Ray’s fraudulent calumny, undue influence, and lack of knowledge and approval on the part of the testator. David alleged that Sonia falsely represented to the testator that David had stolen from his mother-in-law, that he was a violent man who assaulted women. When a ‘Trainee Legal Executive’[4] came to the home to take instructions for the will from the testator, Sonia told her that David and his wife Julie were ‘psychopaths and criminals’ who had stolen a large amount of money from an account of Julie’s mother. She also told her that while the testator was in hospital, David went into his father’s home to find PIN numbers and bank account details. David also claimed that Sonia also falsely made other allegations of ‘criminal damage’ against him. David brought his claim in 2021.


In her response, Sonia admitted to making negative comments about David, but claimed that they were true and that she had a genuine belief in the truthfulness of her comments.


The court made an order giving directions that included enhanced disclosure from the defendants. By that point the defendants had defaulted in the payment of costs ordered earlier, so the court ordered that unless they paid the costs by a specified date the trial would proceed on the basis of written evidence only. The defendants failed to pay the costs and also failed to provide disclosure and to exchange statements with David. Hence, the case proceeded on the basis of written evidence.


At the hearing, the only evidence that was admitted was provided by David and July. The defendants did not attend the hearing.


3. The Evidence


David gave evidence to the effect that he had a good relationship with his father and visited him at least weekly. When the testator was admitted to hospital, it contacted David, because he was listed as the testator’s next of kin. Later, when his father was in the care home, David visited him and overheard Sonia telling his father of the allegations mentioned above and various others.

The attendance note made by Trainee Legal Executive did not indicate who contacted the law firm for which the Executive worked at the time for someone to come and take instructions for a will. But the court inferred that it was Sonia. Sonia was present for at least part of the time and reviled her brother to the Executive. The attendance note did not say that the testator was disinheriting David for any particular reason; nor did it say anything about the testator and David having become estranged. Hospital records made not long after the will described the testator as being ‘vague and unable to follow conversation or give answers to questions’.


4. Judgment


4.1 Fraudulent Calumny


I mean no disrespect when I state that the court accepted the law on this point as stated in the Edwards case by Lewison J and reproduced it in full:


47. There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:


i)    In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;


ii)    Whether undue influence has procured the execution of a will is therefore a question of fact;


iii)   The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;


iv)   In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.


v)   Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;


vi)   The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A “drip drip” approach may be highly effective in sapping the will;


vii)  There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;


viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;


ix)   The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.


The court noted that if Sonia believed that what she said about David was the truth, the will cannot be set aside. However, it found that Sonia provided no evidence of the source and basis of her statements and thus failed to show that she believed her statements to be true. Indeed, Sonia must have known that her statements were false. The court went on to find that she overbore her father’s will and succeeded in falsely influencing him in order exclude David from the will or to minimize the amount to be left to him. Thus, the court found that David had made out the claim based on fraudulent calumny.


4.2 Undue Influence


The court went on to consider the contention of undue influence in case it was wrong on the fraudulent calumny point. It found that Sonia’s repeated falsehoods and her actions of limiting access to the testator, she overbore the testator’s will and therefore the will should be set aside on this ground as well.


4.3 Lack of Knowledge and Approval


The court did not find it necessary to deal with this issue.


5. Order


Consequently, the court pronounced against the will, granted letters of administration of the estate to David, and ordered that an account be taken of all the testator’s assets received by the defendants. The court also ordered that the defendants pay David his costs. And it ordered that the defendants should not recover any costs as executors from the estate because of their unreasonable conduct.


Note that the testator did not have a prior will, so when the court pronounced against the will in question, that meant that the testator died intestate, and his intestate heirs were his two children, David and Sonia.[5] The court does not address this point, but that would mean that they would each take half of the testator’s net estate. This may seem counterintuitive in light of Sonia’s despicable actions. However, those actions, although flagitious, were not criminal (she did not kill the testator). And thus there would have been no basis for declaring her right to inherit on her father’s intestacy to be forfeit. The law does not cause a forfeiture of rights already enjoyed when discreditable acts occur, even if they involve a crime.[6]


6. Analysis


In his text, John ES Poyser discusses many cases involving traditional undue influence cases and cases involving testamentary fraud Ultimately he decides to treat testamentary fraud as a subspecies of undue influence[7] He is in good company. Many cases, English and Canadian, regard testamentary fraud to be a kind of undue influence. And that is understandable. In both cases the testator’s will is overborne. But as the cases also make clear there are differences. Undue influence that does not involve fraud requires proof of coercion; undue influence by fraud does not. And while coercion and fraud may co-exist in a particular case, in others there may be either coercion or fraud. Thus, might we not treat the coercion and fraud cases as two separate categories? Poyser raises the question but does not join the debate.[8] And that’s fair. But it seems to me that we might reconsider the matter of classification because of the differences.


Poyser does make two very important points about testamentary fraud. The first is that there are different kinds of testamentary fraud. One is of the type discussed in this blog. Another is a false promise made by a person to care for the testator in return for being made a beneficiary. It is quite different from the typical testamentary fraud case because the promise may or may not be kept in the future. But a will cannot be set aside on the basis of such a promise (unless perhaps the promisor did not intend to fulfill it from the outset). If the promisor intends to keep the promise but later breaks it there may well be other remedies against the promisor but setting aside the will is not one of them.[9]


The second important point Poyser makes is that the fraud involved in testamentary fraud cases is common law fraud, not equitable fraud, because equity has no role to play in probate.[10]



A separate question is whether we need the label fraudulent calumny. Poyser refers briefly to Edwards in his text and mentions the label but does not comment on it. Is it useful? I think it may be. It has a certain ominous ring to it that highlights the gravity of the defendant’s acts. And that is not a bad thing.


--

[1] (1857), HL Cas 2, 10 ER 1192 at 1212.

[2] [2007] EWHC 119 (Ch).

[3] [2022] EWHC 925 (Ch),

[4] A ‘legal executive’ is a fee-earning qualified lawyer who undertakes work for other solicitors, usually in a specific legal area.

[5] The facts in Edwards were different. There was a prior will in that case and so when the court pronounced against the latest will that was obtained by fraudulent calumny, it pronounced in favour of the prior will. Under it the fraudulent calumniating brother was entitled to share with his victimized brother.

[6] See, e.g., Schobelt v Barber (1966), 60 DLR 2d 519 (Ont HC); Re Gore, 1971 CarswellOnt 246, para 8, [1972] 1 OR 550 (killer’s estate held jointly owned house on constructive trust on a tenancy in common as to half for itself and as to half for the estate of the deceased spouse). Similarly, a legatee who has defrauded the testator is not disentitled to a legacy if the defalcations were unrelated to the legacy: Bolianatz Estate v Simon, 2006 SKCA 16, leave to appeal refused (2006), 361 NR 390n (SCC); Coffey Estate v Coffey, 2014 BCSC 110.

[7] John ES Poyser, Capacity and Undue Influence, 2nd ed (Toronto: Thomson Reuters, 2019), p 355.

[8] Ibid., p 366.

[9] Ibid., pp 361-365.

[10]Ibid., p 366.

(ii) CONTRARY INTENTION AND THE ARMCHAIR RULE

By Albert Oosterhoff


1. Introduction


By now the right of judges to apply the armchair rule in interpreting wills is well established. However, various comments in the cases suggest that there remain differences about when to apply the rule: from the outset or after first considering just the will. There are such allusions also in Re: Estate of Constance Evelyn Stevenson,[1] and I shall discuss them in this blog. The main issue in the case is whether a gift lapsed when the named beneficiary predeceased the testator, and the testator did not name a substitute beneficiary. And the ancillary issue is whether, in determining the main issue, the court can sit in the testator’s armchair.


2. Facts


The testator, Connie, died in 2016. She had made her Will in 1983. She had been twice married, first to Hugh, who predeceased her, and second to Bruce. She had no children, but Bruce had two children, Gary and Cynthia. Hugh was survived by several nephews and nieces. Connie named her husband Bruce and her sister Mildred her executors, but both predeceased her and Canada Trust was appointed her Administrator.


Paragraph III(g) of the Will divided the residue into two equal shares, ‘Share One’ and ‘Share Two’.


Subparagraph III(g)(i) left all of Share One to Bruce if he survived Connie. If he did not, she left one half of Share One to Mildred (‘Mildred’s First Share’). She left the other one half of Share One by giving legacies to each of High’s nieces and nephews and the balance to her stepchildren, Gary and Cynthia. The subparagraph did not contain a gift over in the event Mildred should predecease Connie, which is what happened.


Subparagraph III(g)(ii) made certain legacies to the stepchildren and nieces and nephews, with the balance to Mildred (‘Mildred’s Second Share’). But this subparagraph contained a gift over to the class composed of the stepchildren and the nephews and nieces if Mildred should predecease Connie.


The Administrator brought an application for the advice and directions of the court about the distribution of Mildred’s First Share. The lawyer who drafted the will had died, and his law firm could not find any instructions or notes about the Will.


The Administrator determined that Mildred’s next of kin were six second cousins. Six were served with notice of the application, but only two made an appearance. The Administrator was unable to find the seventh second cousin. The evidence showed that Connie was very close Cynthia and also to Gary and his children. In contrast, although Connie had some contact with one of the second cousins, it was not close or enduring, and the contact with the other second cousin who made an appearance was very limited.


3. Analysis and Judgment


If the gifts to Mildred were specific gifts, Mildred’s lapsed First Share would have been subject to section 23 of the Succession Law Reform Act.[2] It provides that except when a contrary intention appears by the will, a specific gift falls into residue if the beneficiary predeceases the testator. The section does not apply to residuary gifts. However, the common law takes a similar approach. It provides that if the beneficiary of a residuary gift predeceases the testator, the gift lapses and passes on intestacy unless there is a contrary intention in the will. The court cited a couple of cases on point.[3]


The question therefore became whether there was a contrary intention in the will. There did not appear to be. However, the court applied the modern approach to interpreting wills. It concluded, relying on Mladen Estate v McGuire,[4]  that it could sit in the ‘testator’s armchair’ and interpret the will in light of the surrounding circumstances when the testator made the will. There continues to be some dispute about when the court should consider the surrounding circumstances. Should it first try the interpret the will and only then consider the surrounding circumstances? Some cases still suggest that this is right approach. In my view that is incorrect. A will can be interpreted correctly under the modern approach only if the court considers the surrounding circumstances at the same time as it considers the contents of the will. This is clear from Re Burke,[5] a leading Ontario case, cited in Stevenson, and other recent cases.[6]


The court then took into account that Connie had a special and close relationship with the residuary beneficiaries she named in her will: Bruce, Mildred, Gary, Cynthia, and her first husband’s nephews and nieces. Justice Broad inferred from this that Connie wanted to benefit only them. That is why she named the individually, rather than as a class. Further, his Honour inferred, applying the ‘golden rule’ which favours testacy, that Connie did not intend to create a partial intestacy. Moreover, there was no evidence that Connie knew all of her second cousins. She had only limited contact with two. Hence, there was no evidence that she contemplated leaving anything to her next-of-kin. If she had wanted to benefit any of them, she would have named them.


Consequently, using the ‘armchair rule’ his Honour found a contrary intention in the will that avoided the default rule of lapse of Mildred’s First Share. That share should therefore be paid to Cynthia as the surviving residuary beneficiary under clause III(g)(i) of the Will.


I have no quarrel with this decision. I am convinced that it best represents Connie’s intention. Indeed, it seems reasonably certain that the failure to include a gift over was a drafting omission that could have been cured by a rectification of the will.[7] It is true that in Ontario the power of the court to rectify a will is limited. A broad power to rectify, as contained in some statutes,[8] is urgently needed.


However, I wonder whether the approach the court used in Stevenson can be used it when it is faced with a statutory provision that says, ‘Except when a contrary intention appears by the will’. There are several sections in the SLRA that contain such language.[9] Can a court get round such a provision by using the armchair rule? It is one thing to get round a similar common law concept, as in Stevenson, but quite another to evade a statutory provision.


The sections in question were, of course, drafted before the modern approach to will interpretation, at a time when courts, in interpreting a will, were generally restricted to its language. But can a court today, applying modern rules of interpretation, avoid the language of the statute? Or is a statutory amendment necessary? One could argue I suppose that the provision should be interpreted as speaking of a contrary intention appearing by the will ‘as interpreted in accordance with modern principles’. But seems rather sophistic.



If nothing else, this provides another reason why we need a complete revision of the SLRA in which this question can be considered.


---

[1]2022 ONSC 6416. In passing, I wonder why more and more cases are now released under the name of the estate. That is convenient shorthand, of course, but I wonder if it is correct. It suggests that the estate is a legal entity. It is not and we should avoid giving the impression that it is. The personal representative is a legal entity and so are any living parties contesting the will.

[2]RSO 1990 c. S.26 (‘SLRA’).

[3]Kossak Estate v Kossak, 1990 CarswellOnt 483 (HC); and Mladen Estate v McGuire, 2007 CarswellOnt 1976 (SCJ).

[4]Ibid.

[5] [1960] OR 26 (CA), p 30.

[6] See, e.g., Hicklin Estate v Hicklin, 2019 ABCA 136, 46 ETR 4th 1; Trezzi v Trezzi, 2019 ONCA 978; Ross v Canada Trust Company, 2021 ONCA 161.

[7]See, e.g., Re Freeman Estate, 1975 CarswellNS 264. (SCTD).

[8]See, e.g., Wills and Succession Act, SA 2010, c W-12.2, s 39; Wills, Estates and Succession Act, SBC 2009, c 13, s 59.

[9]See SLRA ss. 20(2), 22, 23, 24, 25(1) and (2) 26, 27, and 31. And see also s. 19, which uses similar language.

(iii) REUNIFICATION OF COUPLES IN LONG-TERM CARE – THE CASE OF JOHN AND GWEN HOOPER

By Oliver O’Brien

 

In January of this year, CBC[1] reported on the concerning situation regarding spaces in long-term care homes in Ontario and the reunification of couples. CBC highlighted the case of married couple John (95) and Gwen Cooper (92). Both John and Gwen require full time care but unfortunately for the past 19 months have had to be placed in separate care homes, despite their children’s determination to reunite them.


Their daughter Cynthia Hooper, is worried about the strain the distance is taking on her parents' mental well-being; her father John has been particularly affected, suffering significant cognitive decline. Cynthia said that “there’s a physical [care] need, but there’s also a mental need and I think that needs to be addressed”[2]. Due to both Gwen and John’s medical conditions, traveling by car to see each other can be difficult and the outbreak of COVID-19 and the resulting lockdowns have only exacerbated their separation.


According to Dr. Samir Sinha, director of geriatrics at two Toronto-based institutions, Mount Sinai Hospital and the University Health Network, reuniting spouses has become an increasingly lower priority in the long-term care admission system.


Dr. Sinha said that crisis patients from hospital are now at the top priority for admissions to care homes, followed by those whose health has deteriorated in their homes. The lack of resources both in hospitals and for supportive care have made it difficult to stem the tide of crisis patients. He further states that “the average life expectancy in an Ontario long-term care home is about 18 months”[3].


Professor Ivy Borugeault at the University of Ottawa, commented that the current procedures of the long-term care system and the pressure on workers exposed by the COVID-19 pandemic have made it more difficult to serve the needs of families in reunification.


Under the Long-Term Care Homes Act, 2007[4] (the “LTCHA”) the Ontario Ministry of Health and Long-Term Care regulate admissions to long-term care homes. The act provides categories for admission waiting lists, on this list spousal reunification is under Category 2, only behind crisis patients under Category 1 as the top priority.


The unfortunate case of John and Gwen highlights how much strain has been put on Ontario’s long-term care system.


It is worthwhile to remember the fundamental principle of the LTCHA, which upholds that “a long-term care home is primarily the home of its residents”[5] and it should be operated to ensure residents have their “physical, psychological, social, […] needs adequately met”[6].


John and Gwen’s separation, which has been detrimental to both John’s cognitive health and Gwen’s emotional wellbeing, demonstrates a failure to follow the central principle of the LTCHA and ensure the quality of life that should be expected from Ontario’s long-term care homes.


---

[1] See Matthew Kupfer, ”After 73 years of marriage, this couple is forced to live apart” January 30, 2023, CBC, accessed online: https://www.cbc.ca/news/canada/ottawa/long-term-care-ontario-spousal-reunification-ottawa-1.6726865

[2] ibid

[3] ibid

[4] Long-Term Care Homes Act, 2007, SO 2007, c.8

[5] Ibid at paragraph 1

[6] Ibid

(iv) WELCOMING THE CANADA DISABILITY BENEFIT ACT

By Brett Book


On February 2, 2023, in the 1st session of the 44th Parliament of the House of Commons of Canada, Bill C-22 An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act (the “Canada Disability Benefit Act”)[1] was passed.


The Canada Disability Benefit Act is now before the Senate of Canada. Should it receive royal assent, this legislation will come into force no later than the first anniversary of the day on which it receives royal assent.


This article will provide an overview of this proposed legislation and will look at the history behind Bill C-22, its purposes, and what Canada hopes to achieve with the creation of the Canada Disability Benefit Act.

 

Background


On September 23, 2020, the Government of Canada committed in its Speech from the Throne to create the first-ever Disability Inclusion Action Plan. The plan was to include:


  • A new Canada Disability Benefit;
  • A robust employment strategy for Canadians with disabilities; and
  • A better process to determine eligibility for federal disability programs and benefits.


In the first attempt to implement this plan, the Government of Canada introduced Bill C-35 in 2021. The Bill proposed a tax-free, monthly payment to low-income, working-age persons with disabilities. In the summer of 2021, the Government of Canada launched a first round of engagement with the disability community through ministerial roundtables and an online survey which received over 8,500 responses. Unfortunately, this legislation died later that year when the Liberals called an election.


Bill C-35 was re-introduced as Bill C-22 in the House of Commons on June 2, 2022, by the Honourable Minister of Employment, Workforce Development and Disability Inclusion, Carla Qualtrough. According to the Minister, when the pandemic struck, Canadians with disabilities were hit hard. Many experienced job loss and financial pressures, which increased existing financial insecurity and hardship. By proposing to create the new Canada Disability Benefit, the Government of Canada is responding to the unique and vital needs of persons with disabilities. This supplementary income benefit would help people to rebound and to fully participate in all aspects of our society and economy. It would address the longstanding financial hardships experienced by persons with disabilities predating the pandemic, and would be an investment in the realization of a fully inclusive society. Canadians with disabilities continue to be at the centre of our country’s inclusive recovery.[2]


This legislation supports previous efforts to transform Canada and make it barrier free in areas under federal jurisdiction (including employment) by or before January 1, 2040, through the identification, removal, and prevention of barriers. These initiatives began in 2019 when the government enacted the Accessible Canada Act[3] which came into force on July 11, 2019.


The creation of the Canada Disability Benefit Act appears to be widely accepted and welcome news for working-age Canadians living with a disability. According to the 2017 Canadian Survey of Disabilities, nearly 850,000 (21%) of working-age Canadians with disabilities live in poverty. Accordingly, persons with severe disabilities (26%) and very severe disabilities (31%) are particularly vulnerable and experience a higher rate of poverty, nearly three times the rate of persons without disabilities (11%). Working-age Canadians with severe disabilities who live alone (44%) and are lone parents (37%), are among the highest risk group and are most likely to live below the poverty line.[4]


The same survey also found that Canadians with disabilities including women, men, LGBTQ2 people, racialized people, and Indigenous people are more likely to be financially insecure than other Canadians. The survey also indicated that:


  • A quarter (25%) of Canadians with disabilities spend over 30% of their total income on shelter costs;
  • Only 59% of Canadians with disabilities aged 25 to 64 are gainfully employed, compared to 80% of Canadians without disabilities; and
  • Canadians with disabilities aged 25 to 64 earn less than Canadians without disabilities (12% less for Canadians with milder disabilities and 51% less for Canadians with more severe disabilities).[5]

 

The Act: Purposes and What Canada Hopes to Achieve


Bill C-22 is created as a “framework legislation.” Therefore, most of the substance of the legislation will be developed after it comes into force and through regulations created by the Governor in Council. As we will see shortly, the framework comprehensively outlines the regulations which the Governor in Council can make.


As its main purpose, the Canada Disability Benefit Act aims to “reduce poverty and to support the financial security of working-age persons with disabilities.”[6]

The Canadian Human Rights Commission (the “CHRC”), has commented that “[t]hese purposes engage both the CRPD and the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”). This is important because as a signatory to the CRPD and the ICESCR, Canada has committed to fulfilling many basic economic, social and cultural rights, such as the human right to adequate food and nutrition, clothing, housing, health care, social security, education, freely-chosen work, child care and social security.[7]


The preamble of the Canada Disability Benefit Act provides insight into what Canada is hoping to achieve or address with this legislation, including:


  • Supporting working-age persons with disabilities who are more likely to live in poverty and face barriers to employment (including work disincentives, i.e. loss of income or other benefits as a result of being employed);
  • Building on Canada’s successes in addressing poverty through providing benefits for seniors and families with children; and
  • Aspirational goals for Canada to be a world leader in the eradication of poverty;


The preamble also indicates that the government is cognizant of the framework’s place within the context of the Canadian Charter of Rights and Freedoms which guarantees persons with disabilities the right to equal protection and benefit of the law without discrimination. The Canada Disability Benefit Act also adheres to the overall goal of poverty reduction and contributes to the progressive realization of Canada’s International obligations under the United Nations Convention on the Rights of Persons with Disabilities (the “CRPD”).


The preamble mentions that, in the spirit of “Nothing Without Us,” the Canada Disability Benefit Act recognizes the importance of developing support measures for persons with disabilities, and engaging the disability community, in accordance with the Accessible Canada Act which specifies that “persons with disabilities must be involved in the development and design of laws, policies, programs, services and structures.”[8]

 

The Canada Disability Benefit Act Framework


While most of the details of the legislation are to be spelled out in criteria to be set out in the regulations, the Canada Disability Benefit Act does set out some conditions.


The Benefit


Accordingly, the benefit will not be subject to bankruptcy or insolvency laws; the benefit cannot be assigned, charged, attached, or given as security; the benefit cannot be retained by way of deduction, set-off or compensation under any other Act.[9] Of note, the benefit will be considered garnish able moneys for the purpose of Family Orders and Agreements Enforcement Assistance Act.[10]


The benefit payments themselves will be drawn from the Consolidated Revenue Fund.[11]


The actual amount of the benefit will be set out in the regulations, however, in making this regulation, the Canada Disability Benefit Act holds that the Governor in Council must take into consideration the Official Poverty Line as defined in section 2 of the Poverty Reduction Act.[12]


“Nothing Without Us” – The Canada Disability Benefit Act and Collaboration


The legislation provides that the “Minister must provide persons with disabilities from a range of backgrounds with meaningful and barrier-free opportunities to collaborate in the development and design of the regulations, including regulations that provide for the application process, eligibility criteria, the amount of a benefit and the appeal processes.”[13]


To this end, the Canada Disability Benefit Act provides that within six months of coming into force, the Minister must table a report that sets out the “manner in which the obligation to engage and collaborate with the disability community in relation to the development of regulations has been implemented.”[14]


Amending the Income Tax Act


The Canada Disability Benefit Act will amend the Income Tax Act at paragraph 241 (4)(d) which deals with providing taxpayer information, by adding the following after paragraph (vii.5):


(vii.51) to an official solely for the purposes of the administration and enforcement of the Canada Disability Act or the evaluation of or formulation of policy for that Act,[15]


Regulations


The Canada Disability Benefit Act provides that the Governor in Council may make regulations in respect of:


  • Eligibility criteria;
  • Conditions to be met in order to receive or continue to receive a benefit;
  • The amount of a benefit and the method to determine that amount;
  • Indexing benefit amounts to inflation;
  • Payment periods and the amount to be paid each period;
  • Applications for a benefit, including regulations providing for an application process that is without barriers as defined in section 2 of the Accessible Canada Act;
  • Amendment or rescission of decisions made by the Minister;
  • Reviews or reconsiderations of decisions made under this Act;
  • Appeals;
  • The circumstances in which retroactive payments may be made to persons who do not apply in the time specified but are otherwise eligible;
  • Applications made on behalf of persons who are incapable of managing their own affairs;
  • Circumstances in which the Minister may deem an applicant or beneficiary dead;
  • Authorizing the Minister to correct administrative errors; and
  • Debts and overpayments.


Regulatory Protections


The Canada Disability Benefit Act also establishes offences that are punishable on summary conviction for the commission of:


i. Knowingly using false information or another person’s identity information for the purpose of obtaining a benefit for themselves;

ii. Counselling a person to apply for a benefit with the intent to steal all or a substantial part of it; and

iii. Knowingly making false or misleading representations in relation to an application.


Part and parcel to this, the Canada Disability Benefit Act establishes a system of administrative monetary penalties applicable to:


i. Knowingly making false or misleading representations in relation to an application; and

ii. Making an application for, and receiving, a benefit while knowingly not being eligible to receive it.

 

Implementation


The Canada Disability Benefit Act has been proposed as a federal income supplement for working-age persons with disabilities. It will arguably become a critical piece of Canada’s existing social safety net which also includes the Old Age Security, the Guaranteed Income Supplement, and the Canada Child Benefit.


According to Jinyan Li, professor at Osgoode Hall and co-director of its master of tax program, “[t]he government has used the guaranteed income supplement (GIS) as a model: the disability benefit will end at age 65 when the GIS takes effect and, like the GIS, it will be governed by stand-alone legislation, not the tax act.” Professor Li also notes that “the disincentive to work is less a concern for senior citizens under the GIS than it is for working-age persons.”[16]


The Canada Disability Benefit Act also includes a clause which authorizes the Governor in Council to make regulations to ensure compliance with the Act. Specifically, the Governor in Council may make regulations to adapt section 44.2 of the Old Age Security Act (which makes provisions for the administration and enforcement of seniors’ benefits under that Act) and apply it to the verification of compliance or the prevention of non-compliance with the Canada Disability Benefit Act.[17]


The CHRC has recommended that the Canada Disability Benefit Act should be passed into law and implemented as expeditiously as possible. They also recommend that the Canada Disability Benefit Act could be strengthened by:


  • Better articulating Canada’s obligations under international human rights treaties and under the National Housing Strategy Act;
  • Better reflecting the human rights principle of intersectionality; and
  • Better reflecting the human rights principle of meaningful engagement (“Nothing Without Us”).[18]

 

Concluding Thoughts


“Nothing Without Us” is the slogan that was adopted by the international disability community during consultations on the creation of the CRPD. It represents the spirit of inclusion, collaboration, and meaningful engagement.


The Canada Disability Benefit Act recognizes that many people with disabilities face barriers to obtaining and enjoying an adequate standard of living. With that being said, Canada is long overdue for statutory revisions which take into account the rising cost of living, inflation, and the vulnerability of Canadians living with a disability.


It is hoped that the creation and implementation of this new legislation will be the start of further amendments and additions to Canada’s social safety net, providing more support for those who need it the most.


---

[1] Bill C-22, An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act, 1st session, 44th Parliament House of Commons, 2022 [Canada Disability Benefit Act].

[2] Government of Canada “Government of Canada introduces legislation to create the new Canada Disability Benefit” June 22, 2021, accessed online: https://www.canada.ca/en/employment-social-development/news/2021/06/000754---tabling-of-cdb-legislation.html

[3] S.C. 2019, c. 10.

[4] Government of Canada, “Legislation to create a new Canada Disability Benefit begins second reading in the House of Commons” September 20, 2022, Employment and Social Development Canada, accessed online: https://www.canada.ca/en/employment-social-development/news/2022/09/legislation-to-create-a-new-canada-disability-benefit-begins-second-reading-in-the-house-of-commons.html

[5] Ibid.

[6] Canada Disability Benefit Act, s. 3.

[7] Canadian Human Rights Commission, “Submission to Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities” December 21, 2022, accessed online: https://www.chrc-ccdp.gc.ca/en/publications/submission-standing-committee-human-resources-skills-and-social-development-and-the [CHRC].

[8] Ibid., s. 6(f).

[9] Canada Disability Benefit Act, s. 9.

[10] R.S.C., 1985, c. 4 (2nd Supp.).

[11] The Consolidated Revenue Fund is the account into which the government deposits taxes, tariffs, excises and other revenue, once collected, and from which it withdraws the money it requires to cover its expenditures.

[12] See Poverty Reduction Act, S.C. 2019, c. 29, s. 315, section 2 where the Official Poverty Line is defined as the Market Basket Measure, as published by Statistics Canada under the authority of the Statistics Act, R.S.C., 1985, c. S-19.

[13] Ibid., s. 11.1.

[14] Ibid., s. 11.2(1).

[15] Ibid., s. 13.

[16] Jinyan Li, “Opinion: How to fix the Canada disability benefit” December 1, 2022, Financial Post, accessed online: https://financialpost.com/opinion/how-to-fix-canada-disability-benefit.

[17] Canada Disability Benefit Act, s. 11(1)(s).

[18] CHRC, supra note 6.

V. UPCOMING PROGRAMS

Hesperus Village

Wills and POA’s

March 2, 2023

Speaker: Bryan Gilmartin

 

Osgoode Certificate in Elder Law

Predatory Marriages

April 11, 2023

Speakers: Kimberly Whaley and Professor Albert Oosterhoff

https://osgoodepd.ca/wp-content/uploads/2019/10/2023-Certificate-in-Elder-Law-Brochure.pdf


Estate Planning and Litigation Forum

April 16-18, 2023

Blended Families

Speaker: Kimberly Whaley


Osgoode Power of Attorney and Guardianship: Non-Contentious and Contentious Matters 

April 19, 2023

Contentious Guardianship Applications and Removals of  Attorney and Guardians

Speaker: Kimberly Whaley 

https://osgoodepd.ca/professional-development/short-courses-and-conferences/powers-of-attorney-and-guardianship/


CBA Elder Law Symposium 

April 25, 2023

Civil & Criminal Remedies/Responses to Elder Abuse 

Speaker: Kimberly Whaley 

Program info 


Osgoode Intensive Program in Wills & Estates

Passing of Accounts and Fiduciary Accounts

April 26, 2023

Chair: Kimberly Whaley

https://osgoodepd.ca/professional-development/short-courses-and-conferences/the-osgoode-intensive-program-in-wills-estates/


LSO Six-Minute Estates Lawyer

May 4, 2023

Proving Due Execution

Speaker: Kimberly Whaley

https://store.lso.ca/the-six-minute-estates-lawyer-2023

 

Elder Law Conference, Vancouver

November 9 -10, 2023

Co-chair: Kimberly Whaley

VI. WEL FEATURE SERIES

VII. IN CASE YOU MISSED IT - RECENT BLOG POSTS

Be Careful About Who Witnesses Your Will!


Disclosing Agreements that “Change the Litigation Landscape”


Important Changes to Ontario’s Regulatory Registry


Litigation Tips – How to Hyperlink in Caselines


Introducing New Brunswick’s Supported Decision-Making & Representation Act


Removal and Passing Over of Executors and Administrators


Rectification and Costs


WEL Eats – Capocaccia Trattoria


WEL Eats – Pai Uptown


8 Notable Estates and Trusts Decisions of 2022


Conflict of Laws and Validity of Trust

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WEL NEWSLETTER February 2023, Vol. 12, No. 11