1. CHAMBERS HNW 2020

View rankings on Chambers & Partners website

2. INTERNATIONAL FEDERATION OF AGING (IFA) VIRTUAL TOWN HALL SERIES, JUNE 19, 2020

 

Kimberly Whaley provided the opening remarks and fielded questions from across the globe on June 19, 2020 at the International Federation of Aging Virtual Town Hall Meeting: COVID-19 and Older People: Preventing and Protecting Against Elder Abuse. 

 

More information

Kimberly Whaley presented on behalf of the Ontario Bar Association at the Oakville Public Library & White Oaks Library Branch by webinar on The Laws Protecting Older Adults: Elder Law in 2020

 

Link to Presentation

4. ONTARIO BAR ASSOCIATION AND HAMILTON PUBLIC LIBRARY, THE LAWS PROTECTING OLDER ADULTS, JUNE 29, 2020

 

Daniel Paperny presented for the Ontario Bar Association at the Hamilton Public Library's Central Branch location by webinar on The Laws Protecting Older Adults: Elder Law in 2020. 

 

Link to Presentation

5.  WEL PARTNERS VIDEO ON ELDER LAW, JUNE 2020

 

If you would like to receive a hard copy of our book we would be happy to send you one (while supplies last). Please contact Blossom Pangowish at  blossom@welpartners.com to make arrangements.

 

Visit our website at http://welpartners.com/resources/publications to view our other published books .

WEL CONGRATULATES RANKED LAWYERS IN THE 2020 CHAMBERS & PARTNERS  HIGH NET WORTH RANKINGS: PRIVATE WEALTH DISPUTES IN CANADA

Band 1:

Archie Rabinowitz, Gowling WLG (Canada) LLP

Clare Burns, WeirFoulds LLP

Daniel J. Dochylo, Borden Ladner Gervais LLP

Ian Hull, Hull & Hull LLP

Kimberly Whaley, Whaley Estate Litigation

Melanie Yach, Aird & Berlis LLP

 

Band 2:

Angela Casey, Casey & Moss LLP

Craig Vander Zee, Torkin Manes LLP

David Lobl, Gowling WLG (Canada) LLP

Debra Stephens, Tupman & Bloom LLP

Justin de Vries, de Vries Litigation LLP

Kelly Charlebois, Miller Thomson LLP

Margaret Rintoul, Blaney McMurtry LLP

Nancy Golding, Borden Ladner Gervais LLP

Suzana Popovic-Montag, Hull & Hull LLP

 

View the Rankings on the Chambers & Partners website

By Matthew Rendely

 

On May 11, 2020, our firm successfully argued the dismissal of a motion seeking the recusal of the Honourable Madam Justice Dietrich as the presiding judge over two applications that are currently being heard together on the Toronto Estates List: one application is with respect to the administration of an estate (the "Estate Application") which I will not address here; and the other application is proceeding under the Substitute Decision Act (the "POA Application") which is also not addressed.

On May 25, 2020, the Honourable Madam Justice Dietrich issued reasons in an Endorsement denying the request for her recusal. These reasons are unreported at this time, you can read a copy of Justice Dietrich's said 

Endorsement here.

The Recusal Motion

The grounds for the recusal motion, as set out by the moving party in his motion materials, were that Justice Dietrich allegedly made comments in the course of a case conference which demonstrated bias or a reasonable apprehension of bias in her mind with respect to the applicant's credibility. 

The Endorsement of Justice Dietrich dismissing the recusal motion succinctly outlined the facts of each of the underlying applications, and in particular, those alleged comments which underpinned the allegation of bias or reasonable apprehension of bias by the moving party. Since the Estate Application and POA Application are still proceeding before the court, we leave the reader to review the facts as set out by Justice Dietrich in her said Endorsement.

The Law of Apprehension or Reasonable Apprehension of Bias

The Supreme Court of Canada has reliably held that the test which a judge must consider and answer in deciding whether to recuse themselves on the grounds of bias or reasonable apprehension of bias is the following: 

This test contains a two-fold objective element: 

(i)      the person considering the alleged bias must be reasonable; and, 

(ii)  the apprehension of bias must also be reasonable in the circumstances of the case.[2]

To unpack the elements of this test further, case law explains that a "reasonable person" is one who has knowledge of all of the relevant circumstances, including knowledge of the judicial process and the nature of judging.[3] As for the notion of "bias", an allegation is to be evidenced by a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial. [4]

Litigants must be aware that the threshold to prove bias is high. The Ontario Court of Appeal has held that in cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of "judicial impartiality". [5]

It is important to note that the principle of judicial impartiality is enshrined in the Oath of Office, which is taken by every judicial or officer of a court in Ontario in accordance with section 80 of the Courts of Justice Act. As such, the ONCA has declared that for a judge to step aside in the face of a specious bias claim is to give credence to a most objectionable tactic. [6]

Conclusion

Although the case law suggests that these kinds of recusal motions are not commonly addressed in estates matters, I hope that this article will in any event serve as a useful primer to the reader on the law of bias or reasonable apprehension of bias. 

Most importantly, I hope to highlight by way of this article the importance that the legislature and the courts have placed on the bright line principal of judicial impartiality; as such principle underpins the oath of office, and in effect, the administration of justice.

 

I close by repeating the words of the Honourable Mister Justice Perell from one of his many decision in the case of Fontaine v Canada (Attorney General:   http://canlii.ca/t/hpqpj . [7]  Justice Perell explained that allegations which call into question the court's impartiality and its integrity, such as allegations of bias or reasonable apprehension of bias, "diminish public confidence in the court's supervision" and "may possibly be contemptuous".

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By Daniel Paperny

 

Introduction

This past June was "Elder Abuse Awareness Month" and June 15, 2020 was "World Elder Abuse Awareness Day", recognized by the United Nations and around the globe as a time to address the vulnerabilities, discrimination and abuses faced by seniors. Now, more than ever, in the time of COVID-19, it is imperative that we raise awareness as a society about the hardships faced by our growing elder population, and explore ways we can curb instances of elder abuse. 

 

As we make our way through the fifth month of the coronavirus pandemic, one horrifying aspect of the virus has become devastatingly clear: COVID-19 has disproportionately and fatally impacted our community's senior population. 

 

The over-representation of older adults amongst coronavirus victims is staggering: it is estimated that long-term care residents account for over 80% of those who have died from COVID-19 in Canada.

 

The virus, by ravaging the weakest and most vulnerable members of our society, has revealed deep-rooted systemic deficiencies in long-term care regimes across the country.

 

In addition to exposing shortcomings in the way that care homes are run, the coronavirus has shown just how vulnerable and isolated older adults in this country are in general, something that estate and capacity litigators are sadly all too familiar with. 

 

In the context of estate litigation, we see first-hand the vulnerability of older adults, which can often result in seniors being exposed to fraud, coercion, theft, undue influence and physical, emotional or financial abuse. 

 

Instances of elder abuse are notoriously under-reported for a multitude of reasons (inability of the older adult to report, fear, shame, isolation, capacity issues, etc.), which is all the more reason why we, as a society, must make a concerted effort to shed light on this troubling issue and take steps to address elder abuse.  

 

Aging, Vulnerability and Elder Abuse

 

As we age, we are not only confronted with increasing physical and mental health issues that can impair general function, mobility and cognition, but we also often find ourselves with fewer and fewer supportive friends and family members. Spouses, friends and relatives pass away or grow apart, children move out or become consumed with their own responsibilities, and oftentimes older adults are not only saddled with diminishing health, but find themselves increasingly isolated as they age. 

 

It is estimated that approximately 25% of people aged 65 and over live alone, while a troubling 50% of women aged 75 and over live alone. Aging and loneliness, tragically, seem to go hand-in-hand. 

 

This solitude of aging, coupled with deteriorating health, means that oftentimes the only plausible solution for seniors to live comfortably and safely, while meeting their care needs, is to move into a long-term care facility where the necessary care can be provided for them. 

 

Another result of poor health combined with the propensity towards documented loneliness in the older adult community, which we see often in the world of estate litigation, is that older adults become increasingly susceptible to undue influence, coercion, fraud, and even financial and/or physical abuse by unscrupulous individuals who pick up on the fact that seniors are particularly vulnerable to be taken advantage of.

 

The elderly are regularly the most targeted and victimized group when it comes to fraud scams. And they can find themselves defenceless to schemes by those who seek to take advantage of them. 

 

As estate litigators, every day we are confronted with cases where the vulnerability of older adults results in financial abuse, physical abuse, or seniors' testamentary planning (their wills, Power of Attorneys, beneficiary designations, etc.) being changed as a result of coercion or undue influence exerted by opportunistic perpetrators. 

 

One of the most tragic aspects of elder abuse is that these perpetrators are often those individuals who are closest to the senior, people who the senior relies on for care or financial support and who have the greatest ability to access and further isolate the older adult. Isolating an older adult from their already diminished network of supportive friends and families is a trademark tool used by perpetrators of elder abuse, fraud or undue influence.

 

What We Can Do

 

As we reflect and hopefully emerge as a society from the coronavirus pandemic, in addition to re-evaluating how our long-term care facilities are run, we should also be reflecting on the challenges and helplessness commonly faced by our older adult population and how these difficulties can be addressed, before it's too late. 

 

The Province of Ontario is already taking steps to correct the flawed long-term care home system in the Province, for starters, by mandating that all care facilities in the Province are equipped with air conditioning and by promising to add thousands of new beds to seniors' homes around Ontario, to cut-down on wait times and overcrowding. 

 

Simply raising public awareness of the prevalence of elder abuse and the vulnerability of seniors is one important step toward confronting these problems, although not enough on its own. 

 

Another key step is good planning by adults, to ensure that they and their assets are secured and will be properly cared for as they age by trustworthy individuals. It is crucial that these testamentary plans (wills, powers of attorney, clearly expressed wishes) are made by adults when they are capable, so that when they are incapable or debilitated by age, there are protective systems in place to make sure older adults are cared for.  

 

Appointing appropriate, loyal individuals as one's fiduciaries or attorneys for property and personal care is a crucial step that all adults should take, so that when the challenges of aging do strike, trustworthy advocates are in place (as trustees, attorneys, etc.) who will ensure that seniors and their property are looked after (not abused) as they grow more vulnerable. These steps can also help to ensure that older adults are placed into appropriate care homes and their living situations reflect their prior expectations and wishes as they age.  

 

Finally, remaining in close contact with the older adults in our lives - checking in regularly on their physical, mental and financial status - is crucially important to make sure that our older adult populations are properly cared for and not exposed to neglect or abuse. Obviously, these check-ins are made more difficult during a viral pandemic which requires social distancing, but it is also more important than ever. 

 

We should also be aware of warning signs that a senior may be vulnerable and/or susceptible to being taken advantage of, including:

 

For more information relating to the vulnerability of our older adult population, and elder law in general, you can access our publication "Whaley Estate Litigation on Elder Law" at this link: http://welpartners.com/resources/WEL-on-elder-law.pdf  

By Sareh (Lua) Ebrahimi

A trustee of an inter vivos or testamentary trust is required to carry out his or her duties in accordance with the provisions of the trust document, applicable legislation as well as the principles of common law. A trustee has no authority to vary the terms of a trust unless the trust document itself permits the trustee to vary same. Should a trustee vary the terms of a trust without authority, he or she would be in breach of his or her fiduciary duties.

In Ontario there are several ways to vary a trust: if allowed by the terms of the trust instrument; if all the beneficiaries entitled to share absolutely in the trust are sui juris and agree, the beneficiaries can demand the trust to be terminated and the trust property distributed to them in such proportions as they agree;[1] by court application pursuant to the court's inherent jurisdiction to supervise the administration of trusts, but the basis on which they would do so are very constrained;[2] pursuant to the Charities Accounting Act;[3] or by court application under the Variation of Trusts Act (the "Act"). [4]

Variation of Trusts Act (the "Act")

 

I will focus on this method of varying a trust and the test for court approval.

 

T he  A ct  only contains two provisions. The Act states that where a property is held in trust, a court may approve on behalf of (a) adults incapable of consenting; (b) minors incapable of consenting; (c) unascertained and unborn persons who may become entitled to benefit from the trust; and (d) persons with a discretionary interest, any arrangement, by whomsoever proposed and whether or not there is any other person beneficially interested who is capable of assenting thereto, varying or revoking all or any of the trusts or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts .[5] The Act further states that the court shall not approve an arrangement on behalf of any person coming within clause (1)(a), (b) or (c) unless the carrying out thereof appears to be for the benefit of that person. [6]

 

When reviewing the Act, it is clear that th e language is discretionary, and while it prohibits the court from approving a variation that does not provide a benefit for the incapacitated beneficiaries, there is nothing mandating a Court to approve a variation if a benefit is provided. The Act seems to have expanded on the rule in Sanders v Vautier by allowing the court to consent to a variation on behalf of beneficiaries who are not adults, do not have legal capacity, or who are unborn, or on behalf of unascertained contingent interests. However, it does not empower the court to avoid the rule in Sanders v Vautier and vary a trust in which all the beneficiaries are of full legal capacity and together have the beneficial interest in the trust property. [7]

 

The Test for Court Approval:

 

Court applications under the variation of trust legislation are typically chambers applications that don't normally result in reported written reasons for making, or refusing to make, an order under the legislation. However, there are some reported decisions that provide guidance on the interpretation of the legislation. [8]

 

In Re Irving, the Court su gg ested that it should consider three things when considering whether to approve a variation:

Concerning the first question, caselaw has developed since Re Irving, and courts have questioned whether a variation must stay true to the testator's intention to meet the test for approval considering that the rule in Sanders v. Vautier applies regardless of the intention of the settlor.[10] Furthermore, the Act itself contains no reference to the intention of the testator.

 

Concerning the second question, it has been held that the court must measure the benefit from the starting point of the entitlement. [11]

 

Concerning the third question, it has been held that the benefit must be not just a group benefit but a benefit for every member of the class as an individual.  The variation has to provide a reasonable bargain on behalf of the infant or unborn person that an adult would be prepared to make.

 

In Finnell v. Schumacher Estate, the Ontario Court of Appeal overturned the application judge's approval of a proposed variation on the basis that the applicant had failed to provide adequate evidence of a sufficient benefit to each non-suijuris beneficiary.

Ev e n if t h e  i n c a p a cit a ted  b e n e f ici a ries  b e n e f itted ( o r cert a in  o f  t h em did)  a s a  g r o u p , t h is w a s  no t e n o ug h .  T h e Co u rt m us t  f i n d t h a t t h ere is a su ff icie n t  b e n e f it  f o r e a ch  a n d e v ery  b e n e f ici a ry  o n  b e h a lf  o f  w ho m  t h e  C o u rt is  a s k ed to c on s e n t. [12]  T h e Co u rt  o f  Ap p e a l  d e n ied  a pp r o va l  o f t h e  p r o po s ed Deed  o f  A rr a n g eme n t,  b u t its deci s i o n w a s wit ho u t  p rej u dice to t h e e s t a te tr us tees c o mi n g  f o rw a r d with  a n  a lter n a te Deed  o f  A rr a n g eme n t  f o r a pp r o va l.

 

Must the Benefit be Financial in Order to Satisfy the requirements of the Act?

 

There seems to be two schools of thought, on the one hand, some accept that a non-financial benefit is considered a benefit for the purposes of satisfy the Act, and on the other, financial benefits should be the only consideration.

[13]

 

In Re Zekelman,[14] the court held that in determining the sufficiency of a benefit for purposes of Variation of Trusts, the court could also consider a non- financial benefit. The benefit approved by the court in that case included certain tax savings and "family harmony". The avoidance of family dissension was also recognized as a benefit for variation of trust purposes in Lafortune v. Lafortune Estate.[15] However, the weight of jurisprudence suggests, that although the court may consider non-financial benefits, financial considerations should be the court's primary concern. Non-financial benefits, by themselves are not sufficient. [16]

 

Takeaway

 

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