Hello,
Happy New Year and Best wishes for a Healthy & Successful 2022!
I do hope as you welcomed the new year in, that you managed to take time to relax and enjoy some time for yourself as well as with friends and family.
For me, it was fun having Sammi home. And now she too, is back to work chipping away at that law degree.
My extended family had an addition with a new puppy, Luna.
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We are proud to welcome Claire and Alison as part of our client relations team and Laya Witty, senior litigator - each together will help our WEL Team continue to serve our client needs.
We are grateful for your continued support and we very much look forward to working with you in 2022.
Enjoy the Read,
Kim
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1. ONTARIO CHAPTER OF THE CANADIAN ACADEMY OF DISTINGUISHED NEUTRALS
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Kimberly Whaley is honoured to have been inducted into the Ontario Chapter of the Canadian Academy of Distinguished Neutrals (CADN), and to join such an impressive network of professionals.
The Canadian Academy of Distinguished Neutrals is a professional association whose membership consists of ADR professionals distinguished by their hands-on experience in the field of civil and commercial conflict resolution. Membership is by invitation only and all Academy members have been thoroughly reviewed and found to meet stringent practice criteria. Members are amongst the most in-demand neutrals in their respective provinces, as nominated by their peers and approved by local litigators.
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2. WEL IS PLEASED TO WELCOME A NEW LAWYER TO OUR TEAM, LAYA WITTY, SENIOR LITIGATOR |
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3. WEL IS PLEASED TO WELCOME CLAIRE MIREMBE AND ALISON NANDY TO OUR CLIENT RELATIONS TEAM |
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4. ONTARIO ESTATES BENCH-BAR LIAISON COMMITTEE |
A new bench-bar committee has been set up at the request of the Superior Court of Justice's Regional Senior Judges Council, which includes members of the bar, judges, and Court Services Division Staff, with a view to having meetings quarterly for the purposes of the following:
- to foster a consistent, province-wide approach to how the courts handle estate matters;
- to facilitate communication between the bench and bar;
- to recommend amendments to Practice Directions for consideration by the Regional Senior Judges Council;
- to recommend to the Estates Subcommittee of the Civil Rules Committee proposed amendments to the Rules of Civil Procedure regarding estates; and,
- to monitor changes in the law and share this information with the judiciary, court staff and the bar.
We look forward to this very important initiative.
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5. OSGOODE PD'S ADVANCED IMPEACHMENT TECHNIQUES PROGRAM
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On January 27, 2022, our articling student Natalie Kodsi will participate as a volunteer for Osgoode PD's Advanced Impeachment Techniques Program. In this full day workshop, Natalie will play the part of various witnesses in mock trial-like settings to assist and challenge lawyers in honing in one of the most important skills in their advocacy tool box: impeaching a witness. This will be Natalie’s second time undertaking this type of initiative, the first having been in December of 2021, with Osgoode PD's “Effective Cross Examinations” Program.
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6. WEL PARTNERS ON ELDER LAW NOW AVAILABLE AS AN E-BOOK |
Our previously published resource book on Elder Law is now available in e-book format.
This publication addresses the well-known topics of capacity, undue influence, powers of attorney, and guardianship, the book also addresses discrimination against older persons, predatory marriages, and other topics. Prominent among the topics discussed is elder abuse in its various forms, including financial and physical abuse, civil and criminal law remedies to counter abuse, and protection of the elderly. As well, case law in areas such as predatory marriages, another form of elder abuse, have made it important to describe the vulnerability of the elders in such cases and others and to give guidance on how to prevent such abuses and predations. The book also covers end of life decisions and professionalism and ethics in dealing with vulnerable clients.
The book concludes with a number of appendices that contain helpful checklists on elder abuse, undue influence, and capacity, as well as a summary of capacity criteria.
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2021 ISABEL ROSS (MACLEAN) HUNT AWARD |
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WEL congratulates Anita Southall of Fillmore Riley LLP on receiving the Manitoba Bar Association’s 2021 Isabel Ross (MacLean) Hunt Award for her contributions as an excellent role model for women lawyers.
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Kudos to our colleague Nimali Gamage on teaching the inaugural course on Elder Law at Osgoode Hall Law School. |
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(i) EFFECT OF A WILL’S REVOCATION CLAUSE ON BENEFICIARY DESIGNATIONS |
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By Albert H. Oosterhoff
Alger v Crumb[1] is a helpful case on the issue of the effect of a will’s revocation clause on prior beneficiary designations. This is an issue that ought to have been settled some time ago but has not been settled because of conflicting decisions in Ontario and elsewhere.
On 9 May 2019, the testator made beneficiary designations that directed payment of the funds in her RRIF and TFSA accounts to each of her children, Sherri, Teresa, Robert, and Karen in equal shares. Thereafter, on the same day, she signed her last will. The will contained the following revocation clause:
I HEREBY REVOKE all Wills and Testamentary dispositions of every nature and kind whatsoever made by me heretofore made.
Although ungrammatical – the last two words of the clause are supererogatory because they repeat the previous three words, ‘made by me’ – its meaning seems clear. However, the phrase ‘and Testamentary dispositions of every nature and kind whatsoever made by me’ is unclear and it became the issue in the case.
The Will did not explicitly refer to the RRIF and TFSA.
The testator appointed the Respondents, Robert and Karen, her Executors. The Applicants, Sherri and Teresa, brought an application for an order directing the Executors to pay the Applicants the amount to which they were entitled under the beneficiary designations. The Testator also left a legacy to each of the Applicants in her will, but the Respondents did not contest them. The Respondents took the position that the designations had been revoked by the revocation clause in the will. The parties did not adduce any admissible evidence about the Testator’s intentions, so the court had to rely solely on statute and case law to resolve the issue.
Verner J first considered ss. 50-52 of the Succession Law Reform Act.[2] Section 50 defines the word ‘plan’ and under it the RRIF and TFSA are considered a plan. Section 51 provides that a participant in a plan may designate a person to receive a benefit payable under a plan on the participant’s death by a signed instrument or by will and may revoke the designation by either of those methods But, section 52(1) provides that a revocation in a will is effective to revoke a designation made by instrument only if the revocation relates expressly to the designation, either generally or specifically.[3] This raised the following issues:
1. Are the designations ‘testamentary dispositions’? and
2. If they are, does the revocation clause ‘relate expressly’ to them?
The first issue was resolved easily. In Ontario (and indeed in the other provinces) beneficiary designations are regarded as ‘testamentary dispositions’.[4] This means that in jurisdictions that lack the equivalent of s. 52 a revocation clause in a will revokes prior beneficiary designations. And that is precisely what the Nova Scotia Supreme Court held in Leslie Estate v Gough.[5]
The second issue was not resolved so easily. The court acknowledged that there was no express reference to the two beneficiary designations in the Will. Then it considered the Ontario Court of Appeal case, Laczova Estate v Madonna House.[6] The testator in that case made beneficiary designation with respect to two RRSPs in favour of four family members. Several years later, she made her will. In it, she listed the two RRSPs as being part of her assets, but did not mention the beneficiary designations, nor did she specify how those plans should be dealt with on her death. One beneficiary under the will argued that the will implicitly revoked the beneficiary designations because the plans were listed in the will. On appeal, Catzman JA rejected the argument (para 29).
The will did not contain a revocation clause, but his Honour did not focus on that. Instead, he focused on the language of s. 52(1), which requires that a revocation in a will must relate expressly to the designation. If it does not, the revocation in the will is ineffective. His Honour said that the word ‘expressly’ must be interpreted strictly (para 18). The will in that case did not refer expressly to the beneficiary designations and therefore they remained in force.
Because the Laczova case was not exactly on point since the will in that case did not contain a revocation clause, Verner J next considered Ashton Estate v South Muskoka Memorial Hospital,[7] a decision of McIsaac J. In that case, the testator had made beneficiary designations with respect to his RRIF and later made a will in which he revoked ‘all wills and testamentary dispositions of every nature and kind whatsoever made by me’. McIsaac J held that this clause revoked the earlier beneficiary designations. However, his reasons were very brief, and his analysis of the issue was perfunctory. After repeating the language of s. 52(1), the reasons consisted of only the following statement:
I am satisfied that the designation in 1998 was a "testamentary disposition" for the purposes of this sub-section and this clause in the will effectively cancelled it.
McIsaac J. cited paragraph 9 of the Laczova case for this statement. However, in that paragraph, Catzman JA merely stated that the will did not contain a revocation clause.
It is perhaps also relevant that only the applicant made representations by counsel and the respondents made no appearance.
Verner J noted that McIsaac’s decision was widely criticized and ultimately decided not to follow it because it was plainly wrong. It conflicted with the binding language of s. 52(1), of which the word ‘expressly’ should be interpreted strictly, as Catzman JA held in Laczova. Accordingly, Verner J held that the revocation clause in this cause was ineffective to revoke the earlier designations.
Hence, we now have two inconsistent lower court decisions on the issue, one with virtually no analysis, and one with carefully crafted reasons that are backed up by an authoritative decision of the Court of Appeal. The latter court will no doubt have to resolve the inconsistency in the future, and one expects that it will do so by affirming the argument and decision in Alger.
But there is more to be said about the matter. First, I have the impression that many lawyers continue to use older will precedents that continue to use a revocation clause like the ones used in Ashton and Alger. Such clauses were all right in a time when relatively small parts of estates consisted of pension plans. But now that estates contain significant pension assets, they are inappropriate and should no longer be used. A more sedulous attention to this development and the consequent making of appropriate changes to revocation clauses could have avoided the problem.
In my opinion it would be desirable to amend the SLRA to include a provision similar to one in British Columbia’s Wills, Estates and Succession Act.[8] Section 1(1) contains the following definitions:
"testamentary instrument" means a will or designation or a document naming a person to receive a payment or series of payments on death under a plan or arrangement of a type similar to a benefit plan;
"will" means
(a) a will,
(b) a testament,
(c) a codicil,
(d) an appointment by will or by writing in the nature of a will in exercise of a power,
(e) anything ordered to be effective as a will under section 58 [court order curing deficiencies], or
(f) any other testamentary disposition except the following:
(i) a designation under Part 5 [Benefit Plans];
(ii) a designation of a beneficiary under Part 3 [Life Insurance] or Part 4 [Accident and Sickness Insurance] of the Insurance Act;
(iii) a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada.
Thus, WESA does recognize that beneficiary designations are testamentary instruments, but expressly excludes them from the definition of ‘will’.
Second, until we add such a provision to the SLRA, we should amend our revocation clauses. To avoid any question arising about the effect of a revocation clause on prior beneficiary designations, the clause should expressly exclude revocation of beneficiary designations previously made. For example, it could say:
I REVOKE all Wills and Testamentary dispositions I have made previously; however, I do not revoke beneficiary designations I have made previously (unless I do so by express reference to them in this will).
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[2] RSO 1990, c. S.26 (‘SLRA’).
[4] The court cited Amherst Crane Rentals Ltd v Perring, 2004 CarswellOnt 6806 11 ETR 3d 112 (CA), and MacInnes v MacInnes, [1935] SCR 200 as authority.
[6] 2001 CarswellOnt 4438, 207 DLR 4th 341 (CA).
[7] 2008 CarswellOnt 2592, 40 ETR 3d 153 (SCJ).
[8] SBC 2009, c 13 (‘WESA’).
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(ii) REMOVAL OF TRUSTEES FOR UNREASONABLE CONDUCT |
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By Albert Oosterhoff
1. Introduction
Removal of trustees is unfortunately a regrettable action that courts must take on occasion. They are reluctant to remove a trustee but will do so when necessary. The reasons for the removal vary from case to case, but the fundamental principle that guides the courts is the welfare of the beneficiaries.
Clayton v Clayton[1] is a recent example and is instructive on the tests the courts will apply when considering removal. It is a decision of Justice Sylvia Corthorn, and her Honour has provided us with very thorough reasons in which she discusses the tests in detail as she applies them to the facts.
2. The Facts
Gerald Clayton died in 2002, survived by his wife, Shirley, and their three children, Karen, Patricia, and Daniel, as well as the children of each of them. Gerald had amassed a sizeable estate of more than $8 million, most of which was concentrated in a personal holding company. Gerald left a Primary and a Secondary Will. The Primary Will established a Family Trust, while the Secondary Will created ‘the Wife’s Trust’ for Shirley. Gerald appointed Shirley, Karen, and Patricia as the Executors of his Estate and the Trustees of both trusts. The Trustees could make decisions by majority, but Shirley had to be a member of the majority. As authorized by the Wills, the Trustees allocated approximately 25% of the shareholder’s equity in the holding company to the Wife’s Trust and 75% to the Family Trust. The Family Trust also held title to a home in Florida. On Shirley’s death, the Wife’s Trust would be collapsed and the assets remaining in it would then be added to the Family Trust. The estate would then be distributed equally among the three children, with a gift over to a child’s children if the child predeceased Shirley.
Both Wills gave wide powers to the Trustees with respect to paying income or capital the beneficiaries. Thus, for example, paragraph 5(b) of the Primary Will included phrases such as ‘uncontrolled discretion’ and ‘absolute discretion’. Similarly, the Trustees had absolute discretion under paragraph 6(m) to make advances or loans to any person with or without security. However, Paragraph 5(b) did not give the Trustees discretion to make advances to the spouses of grandchildren.
Daniel brought this application in 2016 for removal of the Trustees and their replacement with BMO Trust Company. He alleged that:
1. The Trustees failed to keep adequate records and to provide an accounting when he asked them to do so;
2. The Trustees acted in bad faith in the way in which they attempted to address the passing of accounts between 2004 and 2014;
3. The Trustees acted outside the scope of their authority when they sought to dictate the terms of Dan’s will and to give them free rein over the management of the Trusts;
4. Karen and Patricia were negligent in failing to address the decline in Shirley’s cognitive function, which began in 2018, when she could no longer fulfill her role as a trustee;
5. The Trustees made unsecured and undocumented loans or advances from the Family Trust more than $3 m to Karen, Patricia and their adult children; and
6. There is such a degree of hostility between the Trustees and Dan that it will be impossible for Trustees to carry out their duties and treat Dan fairly.
The Trustees were advised by Gerald’s long-time accountant and his associate, and by the lawyer who drafted Gerald’s two Wills.
The Trustees made monthly payments of $5,000 to Daniel since 2004 but stopped making the payments in 2015. However, they resumed the payments when Daniel brought this application. They also lent him money from time to time for the purchase and renovation of a home and for a mortgage registered against it. The Trustees also made loans and advances to Karen and Patricia and to their children. None of them were secured, even when the funds were used for the purchase of a home. Nor were the loans and advances made to Karen and Patricia and their children reduced to writing. Instead, the Trustees relied on oral agreements with each of Karen, Patricia, their spouses, their children, and their children’s spouses. The Trustees also failed pass their accounts, and they did they not take any steps to obtain an order to pass the accounts until recently, when they brought the application to do so. It has not yet been heard.
3. The Law
As one would expect, one of the first authorities Corthorn J referred to and quoted from was the locus classicus on the removal of trustees, Letterstedt v Broers.[2] In it, Lord Blackburn stated:[3]
[I]f it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee ... it seems to their Lordships that the Court might think it proper to remove him.
. . .
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on the details often of great nicety.
Her Honour noted that the court’s jurisdiction to remove a trustee is inherent,[4] and that, if the trustee is also an executor, that power runs in parallel with the court’s power under the Trustee Act[5] to remove an executor.
With respect to the effect of language such as ‘absolute discretion’ and ‘uncontrolled discretion’, Justice Corthorn referred to another leading case, Gisborne v Gisborne,[6] which holds that so long as the trustee, who has been given such discretion, has acted without mala fides, the court should not intervene. However, as her Honour rightly noted in para 57 such phrases do not by themselves absolve the trustees from complying with their common law duties, such as the duty to maintain an even hand (i.e., to act impartially). To achieve that result, the trust must say so expressly.[7] But even then, her Honour noted in para 58, the court will intervene:
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If the decision of the trustee is “so unreasonable that no honest or fair-dealing trustee” could have come to the same decision;[8]
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The trustee ignored relevant factors or took into account factors which are irrelevant to the exercise of their discretion in making the specific decision;[9] or
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The trustee did nothing and, having failed to act, is unable to demonstrate that they properly considered whether or not they should have acted.[10]
4. Application
Her Honour concluded that, even if they were relieved of their common law duties, the Trustees ‘engaged in unreasonable conduct and acted in a manner in which no honest or fair-dealing trustee would act’, and further that they failed to act impartially and with an even hand. She examined this under the following headings:
(a) Financial Management, Including the Passing of Accounts
Her Honour noted that the Trustees did not provide Daniel with any documents evidencing their administration between 2002 and 2014. Nor did they take any steps to pass their accounts until 2014. The financial documents that were provided to him then consisted of a Notice to Reader level of documents (the lowest level of review conducted by an accountant), and the accountants did not seem to appreciate that there was a difference between such documents and those required for a passing of accounts. There was a meeting between Daniel and his wife and the two accountants in 2014, but Daniel was not provided with accurate information. Moreover, the accountants insisted on his signing a release, the terms of which were not adequately explained to him, but which would have released the Trustees from any liability with respect to a passing of accounts before 2014. Further, the Trustees did not understand their obligations with regard to providing correct accounts and the passing of the accounts. Her Honour characterized the Trustees actions and failures as so unreasonable as to amount to conduct in which no honest or fair-dealing trustee would have engaged.
(b) The Trustees’ Conduct in 2015 – Dan’s Will and Free Rein Over Trusts
In their negotiations with Daniel in 2015, the Trustees insisted that they would continue their monthly payments to him only if he entered into a written agreement with them that would give them free rein in administering the trust and would waive any statutory or common law rights he might otherwise have as a beneficiary. Her Honour described the Trustees’ actions in this regard as conduct in which no honest or fair-dealing trustee would engage. Further, she found that the Trustees’ attempt to dictate the terms of Daniel’s will to be unreasonable conduct in which no honest or fair-dealing trustee would engage.
(c) The Decline of Shirley’s Cognitive Abilities
Her Honour concluded that Karen and Patricia would not have been able to set aside the fact that the trustee whose cognitive issues were of concern was their mother. And viewed in that light, their conduct could not be considered so unreasonable that no honest or fair-dealing trustee would have addressed the matter as they did.
(d) The Loans
Her Honour noted that the loans made by the Trustees to Karen, Patricia, and their children represented more than 50% of the value of the Family Trust in 2014, that the grandchildren made only interest payments on them at a low rate, and that there was no written agreement with any of the grandchildren. She found that the Trustees, knowing that some of the loans to the grandchildren would be applied to the purchase of a matrimonial home, failed to take steps to protect the Trust’s assets. Consequently, more than $1.6 m were at risk. Thus, she held that the Trustees acted unreasonably and engaged in conduct in which no honest or fair-dealing trustee would engage.
Although the Trustees had absolute discretion to make loans to any person (though not to spouses of grandchildren), Justice Corthorn found that there was nothing in the language of the Primary Will that relieved the Trustees of their common law duties.[11] She concluded that the Trustees favoured Karen’s and Patricia’s children and their spouses over other potential beneficiaries. Thus, they did not act impartially and with an even hand.
With respect to the loans and advances made to Karen and Patricia, Justice Corthorn noted that there was no documentation to evidence the terms of any of the loans. She concluded that in this respect too, the Trustees engaged in unreasonable conduct in which no honest or fair-dealing trustee would engage, and they failed to fulfill their common law duties to act impartially and with an even hand.
Justice Corthorn also found that the Trustees ignored the advice of their accountant and lawyer. Moreover, they failed to consider the potential that the status quo in the family on which they relied for the fulfillment of the terms of the various oral agreements might change. It could easily change in consequence of the breakdown of a marriage and any resulting discord, financial difficulties such as bankruptcy, or the death of one of the trustees. Thus, her Honour held that in this respect too, the Trustees engaged in unreasonable conduct in which no honest or fair-dealing trustee would engage.
(e) The ‘Virk Factors’
Justice Corthorn held in the alternative that if she was wrong in holding that the Trustees should be removed for unreasonable conduct, they could be removed on the basis of what she called ‘The “Virk Factors” ’. It is a reference to a non-exhaustive list of factors made by Richetti J in Virk v Brar,[12] which reads as follows:
a) the court will not lightly interfere with the testator’s choice of estate trustee;
b) there must be a “clear necessity” to interfere with the discretion of the testator;
c) removal of an estate trustee should only occur in the clearest of evidence that there is no other course to follow;
d) the court’s main guide is the welfare of the beneficiaries;
e) it must be shown that the non-removal of the trustee will prevent the proper execution of the trust; and
f) the removal of an estate trustee is not intended to punish for past misconducts; rather it is only justified if past misconduct is likely to continue and the estate assets and interests of the beneficiaries must be protected.
Based on this list, her Honour concluded that: (a) it was clearly necessary to interfere with the discretion conferred by the testator; (b) the Trustees failed to take the welfare of the beneficiaries into account; and (c) the non-removal of the Trustees will prevent the proper execution of the Trusts. The Trustees failed from the outset to appreciate the significance of their obligations and that failure continued. This was evident in the fact that they overlooked the possibility that the status quo might not be maintained and that, if it did not, they would be prevented from distributing the estate in accordance with the Primary Will. Further, the friction between the Trustees and Daniel had reached a level that it prevented and would likely continue to prevent the proper administration of the Trusts. It would also make it difficult for the Trustees to act with impartiality.
Consequently, Justice Corthorn held that Daniel had met the high standard for the removal of trustees and therefore ordered the removal of the Trustees.
5. Conclusion
The case thus highlights the fiduciary obligations of trustees and executors. What is particularly troubling is that the Trustees had access to the lawyer’s services but did not always avail themselves of them (see, e.g., para 93). In fact, the Trustees did not engage the lawyer in ‘an overall general retainer’ (para 99). Although the lawyer did review the Trustees’ duties with them (and the court did not fault him in that regard), if they had engaged him in a general overall retainer, they might well have been able to avoid making the errors that led to their removal. This suggests that lawyers engaged by trustees should be more proactive in recommending a full retainer and then providing advice to the trustees on an ongoing basis.
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[1] 2021 ONSC 5811, 70 ETR 4th 42.
[2] (1881), 9 AC 371 (PC).
[4] It is in this case, but the court also has statutory powers to remove trustees under s. 5 of the Trustee Act, RSO 1990, c T.23.
[6] (1877), 2 App Cas 300 (HL).
[7] For an example of language that absolved trustees of some of their duties, see Hayim v City Bank NA, [1987] UKPC 11, [1987] AC 730. In it the testator directed that his executors and trustees had no duty or responsibility with respect to a house. The beneficiaries wanted the trustees to sell the house for a good price, but the trustees refused to do so until a few years later. By then the price had dropped significantly. However, in the beneficiaries’ action against the trustees, the Privy Council advised that the trustees were not liable, because they had no duty with respect to the house.
[8] Referring to Martin v Banting (2001), 37 ETR 2d 270 para 25, which quoted from an earlier edition of Waters Law of Trusts in Canada. See now Waters’ Law of Trusts in Canada, 5th ed by Donovan WM Waters, Mark R Gillen, and Lionel D Smith (Toronto: Thomson Reuters, 2021), p 1054.
[9] Referring to Banton v. Banton (1998), 164 DLR 4th)176 (Ont. Gen. Div.), at p. 234, citing Fox v Fox Estate (1996), 28 OR 3d 496 (CA), leave to appeal refused [1996] SCCA No 241.
[10] Referring to Martin v Banting, supra at para 25, which also quoted from an earlier edition of Waters Law of Trusts in Canada. See now Waters, 5th ed, supra, loc cit.
[11] Para 6(c) of the Primary Will did contain such language with respect to investment in, inter alia, mortgages. However, it did not apply since the Trustees did not treat any of the loans as mortgages.
[12] 2014 ONSC 4611, 1 ETR 4th 241 at para 48.
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(iii) 2022 BRINGS EXCITING CHANGES TO ONTARIO WITH BILL 245 |
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By Rebecca Betel and Natalie Kodsi
Bill 245, the Accelerating Access to Justice Act, 2021[1] (the “AAJA”), assented to April 19, 2021 (“Date of Ascension”), is a large omnibus Bill that amends various Ontario statutes and regulations. This overview of the AAJA will take a deep dive into the most salient changes the AAJA brings to estates law.
The AAJA is comprised of 11 Schedules, each detailing amendments to various existing legislation as follows:
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Schedule 1 Barristers Act, R.S.O. 1990, c. B.3
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Schedule 2 “CLRA” Children’s Law Reform Act, R.S.O. 1990, c. C. 12
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Schedule 3 “CJA” Courts of Justice Act, R.S.O. 1990, c. C.43
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Schedule 4 “CAEA” Crown Administration of Estates Act, R.S.O. 1990, c. C.47
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Schedule 5 Expropriations Act, R.S.O. 1990, c. E.26
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Schedule 6 “OLTA” Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
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Schedule 7 Public Accounting Act, 2004, S.O. 2004, c. 8
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Schedule 8 “SDA” Substitute Decisions Act, 1992, S.O. 1992, c. 30
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Schedule 9 “SLRA” Succession Law Reform Act, R.S.O. 1990, c. S.26
- Schedule 10 Amendments Respecting Appeals to a Minister
- Schedule 11 Parentage terminology in French Versions of Acts
Schedule 1 – Barristers Act, R.S.O. 1990, c. B.3 (the “Barristers Act”)
Schedule 1 to the AAJA came into effect on the Date of Ascension, April 19, 2021, and amends the Barristers Act with reference to a current, or former, Attorney General for Ontario and removes the reference to the Solicitor General of Canada. The effect of this change is that a person who is, or has been, Attorney General for Ontario or Minister of Justice, and Attorney General of Canada is entitled to be called to the bar of Ontario without complying with the Law Society Act[2] (the “Law Society Act”) or any of the Law Society of Ontario’s rules or regulations as to licensing, examinations, payment of fees or otherwise, and is thereupon entitled to practice at the bar of Her Majesty’s courts in Ontario.
Schedule 2 – Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”)
Schedule 2 to the AAJA came into effect on the Date of Ascension, April 19, 2021, and provides for two amendments to the CLRA: (1) the default maximum amount for the total money payable and the value of personal property deliverable under subsection 51(1) of the CLRA is now $35,000; and (2) if a person is duty bound to pay money or deliver personal property to a child pursuant to a judgment or court order, they can now discharge that duty in the same way they would under subsection 51(1), subject to the upper limit imposed by subsection 51(1.1).
Subsection 51(1) of the CLRA permits a person who owes money/personal property to a minor to discharge their debt by paying the money, or delivering the personal property, as the case may be, to said minor (assuming they have a legal obligation to support another person), a parent with whom the minor resides, or a person who has lawful custody of the minor. Historically, subsection 51(1.1) imposed an upper limit for the amount payable/value deliverable of $10,000. Schedule 2 amends subsection 51(1.1) to replace this upper limit with the amount prescribed by regulation O Reg 120/21 made under the CLRA, which is $35,000.
Furthermore, whereas previously money payable under a judgment or court order was expressly excluded from the application of subsection 51(1), now Schedule 2 re-enacts subsection 51(2) of the CLRA such that money payable under a judgment or court order, or upon an intestacy, is now subject to subsection 51(1) of the Act.
Schedule 3 – Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”)
Schedule 3 to the AAJA provides for many amendments to the CJA and related amendments to other Acts, such as:
- the title of a case management master will now be “associate judge”;
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lawyer members of the Judicial Appointments Advisory Committee (the “Committee”) are now to be confidentially appointed by the Attorney General, with certain requirements;
- the functions of the Committee are now amended in regard to how and when they advertise judicial vacancies;
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section 112 of the CJA is re-enacted to enable the Children’s Lawyer to make investigations and prepare reports for the court on certain matters specified by the court or to meet with the child and prepare reports for the court on their views and preferences pursuant to the Divorce Act[3] or the CLRA;
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section 126 of the CJA, which deals with the use of French in court proceedings, is re-enacted and makes changes with respect to the right to file documents in French and the right to request translations.
Schedule 3 largely came into effect on the Date of Ascension, April 19, 2021. Please consult the Table of Proclamation on e-laws in cross-reference with the AAJA for the coming into force information of specific provisions: https://www.ontario.ca/laws/proclamations.
Schedule 4 – Crown Administration of Estates Act, R.S.O. 1990, c. C.47 (“CAEA”)
Schedule 4 to the AAJA provides for two amendments to the CAEA: (1) as of the Date of Ascension, April 19, 2021, municipal police must provide estate-related disclosure to the Office of Public Guardian and Trustee (“OPGT”) upon requests; and (2) as of a day to be named by Proclamation of the Lieutenant Governor,[4] the OPGT’s powers under section 2.1 of the CAEA now have primacy over any other Act or regulation which prevents the disclosure of private information, including the Municipal Freedom of Information and Protection of Privacy Act[5] (the “MFIPPA”).
The mandate of the OPGT is broad and includes: the management of incapable adults; the protection of minors; the protection of the public interest with respect to charities in Ontario; and, the administration of certain estates, including those where an Ontario resident dies without an available estate trustee.
To carry out its estate administration mandate, the OPGT may require the identification, collection, and use of personal information pertaining to an estate, such as its assets, value, and heirs/beneficiaries. Section 2.1 of the CAEA governs and facilitates the OPGT’s ability to request, access and use required information, including when that information is held with other institutions. Schedule 4 amends section 2.1 of the CAEA with subsection 2.1(5.1) which requires the municipal police service to disclose information related to an estate to the OPGT upon request.
Moreover, section 2.2 of the CAEA, that provides for section 2.1 to override other Acts and regulations in the event of a conflict, is re-enacted in order to add express reference to the MFIPPA as an Act that may be overridden.
Schedule 5 – Expropriations Act, R.S.O. 1990, c. E.26 (“Expropriations Act”)
Schedule 5 to the AAJA comes into effect on a day to be named by Proclamation of the Lieutenant Governor[6] and provides a new process for all proposed expropriations under the Expropriations Act and new annual interest rates.
Schedule 5 amends the Expropriations Act by adding a new section 8.1 that permits the Lieutenant Governor in Council to make regulations to establish, for any or all proposed expropriations to which the Act applies, a process for owners to provide comments respecting a proposed expropriation to the approving authority, and for the approving authority to consider those comments and make a determination respecting the proposed expropriation. This process replaces the previous hearing process provided for under section 7 of the Act. Complementary amendments are made to other provisions of the Act, as well as to other Acts, to reflect the alternative process.
Schedule 5 also amends section 33 of the Expropriations Act to provide for annual interest rates specified in that section to be determined by regulations made under the Act, as opposed to the previous rate of 6% a year.
Schedule 6 – Ontario Land Tribunal Act, 2021, S.O. 2021, c.4, Sched. 6 (“OLTA”)
Schedule 6 to the AAJA largely came into effect on the Date of Ascension, April 19, 2021, and otherwise on June 1, 2021[7] and enacts the OLTA. The OLTA provides for the composition of the Ontario Land Tribunal, sets out its jurisdiction and powers and specifies the practices and procedures that apply with respect to proceedings before it. The Ontario Land Tribunal is an amalgamation of: the board of negotiation continued under the Expropriations Act; the Conservation Review Board; the Environmental Review Tribunal; the Local Planning Appeal Tribunal; and, the Mining and Lands Tribunal. Note the bodies that are amalgamated and continued as the Ontario Land Tribunal are themselves repealed, and regulations made under those Acts and provisions are revoked. Additionally, various Acts[8] have been amended to reflect the changes brought about by the OLTA, including reference to the Ontario Land Tribunal.
Separately, under the OLTA: the Attorney General is given authority to make regulations for transitional matters, and authorities are given to the Lieutenant Governor in Council and the Minister for the making of various regulations; and as of June 1, 2021, the Consolidated Hearings Act[9] is repealed, and consolidated hearings are now provided for under section 21 of the OLTA.
Schedule 7 – Public Accounting Act, 2004, S.O. 2004, c. 8 (“Public Accounting Act”)
Schedule 7 of the AAJA came into effect on April 30, 2021 and amends the Public Accounting Act by dissolving the Public Accountants Council of Ontario. The Public Accounting Act transfers the governance of public accounting in Ontario to the Chartered Professional Accountants of Ontario (“CPA Ontario”). Under section 19 of the Public Accounting Act, when governing public accounting under the Act, CPA Ontario must adhere to any public accounting standards that it establishes for itself, subject to the approval of the Attorney General. The amendments under Schedule 7 expressly provides that licensed public accountants must be members of CPA Ontario and provide authority for CPA Ontario to regulate public accounting and govern its members through by-laws and other instruments made by its council under the Chartered Professional Accountants of Ontario Act, 2017[10]. That Act is amended to reflect these changes.
Schedule 8 – Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”)
Notably, schedule 8 to the AAJA amends the SDA by adding and modifying section 3.1 that allows for virtual witnessing and execution of a power of attorney. The requirements for virtual witnessing and execution are satisfied through the use of audio-visual communication technology so long as at the time of execution at least one witness is a licensee pursuant to the Law Society Act and the signatures are contemporaneously made (signatures in counterparts permitted). Section 3.1 of the SDA came into force on April 7, 2020 and was amended on May 20, 2021. For greater clarity, section 3.1 applies for powers of attorney entered into on or after April 7, 2020 and applies, with necessary modifications, to the revocation of a power of attorney under the SDA.
Schedule 8 also broadens the OPGT’s access to records relating to an investigation under the SDA. Schedule 8 amends sections 83 and 90 of the SDA, respecting the OPGT’s entitlement to have access to records relating to a person who is alleged to be incapable in the context of an investigation under the SDA, in order to provide for access to records in the custody or control of an entity or class of entities prescribed by the regulations made under the SDA. The changes to sections 83 and 90 of the SDA came into force on two days: the Date of Ascension and May 20, 2021.
Schedule 9 – Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”)
Schedule 9 to the AAJA makes multiple significant amendments to the SLRA, the implications of which will surely make waves throughout the practice of estates law in Ontario.
Witnessing Wills
Wills can now be signed and remotely witnessed, in counterparts, via electronic audio-visual communication. Section 4(1) of the SLRA provides that Wills made on or after April 7, 2020, may be remotely witnessed through the means of audio-visual communication technology, so long as at least one witness is a licensee pursuant to the Law Society Act at the time of execution and the signatures are made in the (electronic) presence of the testator (signatures in counterparts permitted). This amendment is deemed to have come into force on April 7, 2020 and was amended on May 20, 2021.
Revocation of a Will by Marriage
Marriage occurring on or after January 1, 2022 does not revoke an existing Will. As of January 1, 2022, section 16 of the SLRA, that a Will is revoked by the marriage of the testator, except in specified circumstances, is repealed.
Separation and Divorce of Testator
Historically, section 17 of the SLRA provides that if the marriage of a testator is terminated or declared a nullity then the testator’s Will shall be construed as if the former spouse had predeceased the testator such that any devises, bequests, appointments, or conferring of powers of appointments to the former spouse will be revoked. As of January 1, 2022, except where a contrary intention appears in the Will, section 17 is amended to add other specified instances of separation between married spouses that would have the same result, such as: living separate and apart for a period of 3 years; a separation agreement; court order; or a family arbitration award. This amendment takes effect in circumstances where a Will names a former spouse who has been separate but not divorced for at least three years prior to the death of the testator that must occur after December 31, 2021.
Remedial Powers
As of January 1, 2022, Schedule 9 amends the SLRA by adding section 21.1 to give the Superior Court of Justice authority to, on application, make an order validating and rendering fully effective a document or writing that was not properly executed or made under the SLRA if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased, or an intention of a deceased to revoke, alter or revive a Will. Electronic Wills form an exception to this provision. Previously, Ontario adhered to a strict compliance regime such that the Court had no discretion in determining a document as constituting a valid Will if it did not fully comply with the requirements prescribed by the SLRA. Now, under section 21.1, improperly signed wills are treated with more flexibility such that the Superior Court is authorized, on application, to determine a non-compliant Will valid. Note that one can only make an application under section 21.1 where the date of death of the testator is on or after the effective date, being January 1, 2022.
Separated Spouse - Intestacy
As of January 1, 2022, section 43.1 of the SLRA provides that spousal entitlements under Part II of the SLRA do not apply if the intestate and their spouse were separated, as determined under the section, at the time of the person’s death. A complementary amendment is made to section 6 of the Family Law Act[11].
Schedule 10 – Amendments Respecting Appeals to a Minister
As of June 1, 2021, Schedule 10 of the AAJA amends the Environmental Protection Act[12], the Mining Act[13], the Nutrient Management Act, 2002[14], the Ontario Water Resources Act[15], the Pesticides Act[16], the Safe Drinking Water Act, 2002[17], and the Toxics Reduction Act, 2009[18], by removing provisions that permit certain matters to be appealed to a minister of the Government of Ontario, and providing for a regulation-making authority to address any transitional matters that may arise as a result. A complimentary amendment is made to the Resource Recovery and Circular Economy Act, 2016[19].
Schedule 11 – Parentage terminology in French Versions of Acts
Schedule 11 makes various changes to French-language terminology in a number of statutes. Notably, references to “père” and “mère” are replaced with “parent”. For more details, please refer to the text of the AAJA.
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[1] Accelerating Access to Justice Act, 2021, S.O. 2021, c. 4.
[2] Law Society Act, R.S.O. 1990, c. L.8.
[3] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
[4] On a day to be named by Proclamation of the Lieutenant Governor, which is the date section 1 of Schedule 1 to the Comprehensive Ontario Police Services Act, 2019, S.O. 2019, c.1, is to come into force. For coming into force information for Ontario statutes, consult the Table of Proclamation on e-laws found here: https://www.ontario.ca/laws/proclamations.
[5] Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.
[8] Including the Local Planning Appeal Tribunal Act, 2017, the City of Toronto Act, 2006, the Municipal Act, 2001, the Ontario Northland Transportation Commission Act, and the Expropriations Act.
[9] Consolidated Hearings Act, R.S.O. 1990, c. C.29.
[10] Chartered Professional Accountants of Ontario Act, 2017, S.O. 2017, c. 8, Sched. 3.
[11] Family Law Act, R.S.O. 1990, c. F.3.
[12] Environmental Protection Act, R.S.O. 1990, c. E.19.
[13] Mining Act, R.S.O. 1990, c. M.14.
[14] Nutrient Management Act, 2002, S.O. 2002, c. 4.
[15] Ontario Water Resources Act, R.S.O. 1990, c. O.40.
[16] Pesticides Act, R.S.O. 1990, c. P.11.
[17] Safe Drinking Water Act, 2002, S.O. 2002, c. 32.
[18] Toxics Reduction Act, 2009, S.O. 2009, c. 19.
[19] Resource Recovery and Circular Economy Act, 2016, S.O. 2016, c. 12, Sched 1.
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Law Society - 19th Real Estate Law Summit
April 6, 2022
Use of Powers of Attorney in Real Estate Transactions
Co-Speakers: Kimberly Whaley and Larry Enfield
Osgoode Certificate in Elder Law
Predatory Marriages
April 7, 2022
Speakers: Kimberly Whaley and Albert Oosterhoff
Estate Planning and Litigation Forum
April 10 – 12, 2022
New Developments in Case Law – panel discussion with Peter Glowacki, John Poyser, Craig Vander Zee, and Deidre Herbert
Canadian Centre for Elder Law (CCEL) Elder Law Course
April 21, 2022
Co-Chairs: Kimberly Whaley, Geoff White, Krista James and Hugh McLellan
Osgoode Professional Development
April 26, 2022
Passing of Accounts
Chair: Kimberly Whaley
Speakers: Albert Oosterhoff, Tracey Phinnemore, Bryan Gilmartin with Ian Hull, Office of the Children’s Lawyer (OCL) and Office of the Public Guardian and Trustee (PGT)
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30 – May 2, 2022
Decisional Capacity: A Wills & Estates Context
Speakers: Kimberly Whaley, Albert Oosterhoff and John Poyser
Canadian Lawyer Webinar
May 18, 2022
Speakers: Kimberly Whaley and Ian Hull
The International Academy of Estate and Trust Law (TIAETL)
May 22-26, 2022
2022 Annual Meeting, Washington, DC
STEP Global Congress, London UK
July 7-8, 2022
Predatory Marriages
Speakers: Kimberly Whaley, Louise Lewis and Daniel Holloway
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