Will Your Child Marry A Jew?

May 11, 2012 in Halacha and Estate Litigation, Public Policy & Estates by Charles Wagner | No comments

Excluding the Orthodox community, some estimate that 72% of North American Jews intermarry.

As chair of B’nai Brith Canada’s Trusts & Estates Group I oversee the committee that chooses the subject matter and format of the continuing legal educational programs offered every year to the lawyers and accountants of our community.  We choose topics that are relevant to the profession and to the Jewish community.  This year we are examining whether a clause in a will that disinherits a child for marrying outside the faith is legal.

For the Jewish community in general, and the Israeli community in particular, the issue of continuity is very relevant.  If the statistics are correct, 7 out of every 10 non-orthodox Jews may choose a partner that may lead to the elimination of their Jewish identity.  In one controversial study done in 1975 there was a prediction that 60 years from now North American Jewry may be reduced by 85-95%.

The program this year addresses the tension between testamentary independence and the Ontario courts’ willingness to vary a will or set aside a provision that offends public policy.  The format of the seminar will be a summary trial. The fact situation before the court is an amalgamation of several cases from Ohio, Illinois and Quebec. In each instance, the testator disinherited a child for marrying outside the Jewish faith. At issue is how an Ontario court might

  1. Balance the right of a testator to determine who is entitled to his bounty weighed against provisions that might offend public policy; and
  2. The moral duty of a parent to include a child in his inheritance.

While the question of whether a “disinheriting provision” might offend public policy is certainly interesting, of more concern to the estates bar is the argument that the moral duty of a parent to include a child in one’s testamentary planning is legally enforceable.  In British Columbia, the courts have varied wills because they consider that the moral duty of a parent to include a child in their will is a legal duty. In some jurisdictions in Europe there are forced heirship laws requiring a certain percentage of every estate to be bequeathed to the testator’s spouse and children. To date, unlike the courts in British Columbia, there is no case in Ontario where a court has revised a will to the benefit of a healthy non-dependant adult child who was disinherited. However, certain cases, like the Court of Appeal decision in Cummings v. Cummings, 2004 CanLII 9339 (Ont. C.A.), suggest that Ontario courts will be taking the moral entitlement of adult children dependants into account when reviewing competing claims.

For a moment let’s step back from the legal analysis and address whether disinheritance is the right thing to do even if such a clause is legal.     In my view, if we have to use the threat of disinheritance to coerce our children to marry Jewish then we have lost the battle for continuity.  It is an ineffective process.  To succeed in the battle for continuity parents and grandparents have to persuade our children that there is a benefit to membership.  To that end we should be sending our children to Jewish schools, Jewish camps, and trips to Israel and be supporting organizations that promote our culture and instill in our children pride of our heritage.

The seminar will take the format of a summary trial. The disinherited beneficiary will be filing an affidavit explaining why he is challenging the will. The estate will be filing an expert report trying to prove why the fight for Jewish continuity neither offends public policy nor invites an Ontario court to vary the will. At the seminar, Jordan Atin of Hull and Hull LLP is playing the judge. Representing the estate is Ian Hull of Hull and Hull LLP and Kelly Charlebois of Miller Thomson LLP. Representing the daughter is Craig Vander Zee of Torkin Manes LLP. The disinherited son is represented by Archie Rabinowitz of Fraser Milner Casgrain LLP, Kimberly Whaley of Whaley Estate Litigation and Charles B. Wagner of Wagner Sidlofsky LLP.

As part of the presentation, the estate will be calling in expert witness Rabbi Mordechai Torczyner, Rosh Kollel, YU Kollel in Toronto whose expert report will speak to why a clause promoting Jewish continuity does not offend public policy. He will be cross-examined by Rabinowitz. Howard Black of Minden Gross will be playing the disinherited son. He will be cross-examined by Vander Zee.

The event will take place on June 5, 2012 at Shaarei Shomayim Synagogue, 470 Glencairn Ave., Toronto, ON M5N 1V8. Registration is at 7:30 a.m. and the moot court will begin at 8 a.m. The event is open to lawyers and accountants. Those lawyers and/or accountants interested in attending should contact Anita Bromberg, B’nai Brith Canada, at (416) 633-6224 and/or at abromberg@bnaibrith.ca.

 

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Cross Border Issues – Israel and Canada

February 24, 2012 in cross border litigation, Elder Law, Estate Litigation, Executors / Trustees, Probate, Wills by Charles Wagner

Ontario lawyers are increasingly establishing strategic alliances with Israeli attorneys to better serve their clients.  Why? There are lots of reasons.  Enforcement of Israeli court orders in Ontario, increased trade between the countries requiring cooperation between corporate and tax counsel, and families with members in both jurisdictions requiring cooperation in Family law and estate disputes.   

 

Take this scenario for example – Stella lives with her son in her Toronto home.  She bought an apartment in Jerusalem to be close to her daughter.  She lives ½ the year in her Toronto home to be close to her son and ½ the year in Jerusalem to be close to her daughter.   In her will Stella appointed her two children as executors and divided her estate equally between them.  Simple – yes?  Not really. 

 

Unless proper steps were taken in her estate planning there could be adverse tax consequences that could have otherwise been planned for and perhaps avoided to achieve her goals.  If Stella is determined to be a Canadian resident, the Canadian government will tax her worldwide income and assets, including the Israeli property.  If her executor is a Canadian resident, then her estate will be deemed to be resident in Canada and the executor will be required to remit withholding taxes to Canada in respect of any amounts paid or property transferred to a beneficiary living outside of Canada. If Stella is determined to be an Israeli resident, then her executor must take into account the withholding tax payable on any transfer of the Canadian property. If she is determined to be an Israeli resident, but her executor is a Canadian resident, the estate will immigrate back to Canada for Canadian tax purposes.  

 

Now let’s talk about the Israeli tax issues.  If, for the purposes of Israeli tax law, Stella lives in Jerusalem, then Israeli Tax Authorities (ITA) require her to report her foreign assets and income.  The ITA will impose penalties and interest charges for her failure to do so.  Moreover, the ITA will consider Stella’s worldwide income taxable subject to relevant tax treaties.  If Stella has not addressed these issues during her lifetime than that means this responsibility falls to her executors.  Stella’s children will likely have to deal with her failure to report her assets and income to the ITA.

 

When Canadian and Israeli estate and tax issues are explained to executors the reaction is usually the same – Gevalt!

 

The above is a fictional scenario. While my office only litigates, over the last several years I have been consulted by people like Stella’s children because of my experience in wills and trusts and my network of Israeli attorneys and Canadian lawyers whose practices deal with these issues.  These lawyers are often called upon to address problems that arise when individuals did not take into account the different tax ramifications of multiple residences, beneficiaries and executors in different jurisdictions.   One such lawyer who has assisted me on occasion is Gilead Sher.

 

Mr. Sher is the senior partner of Gilead Sher & Co. Law Offices.  He is a household name in Israel and regardless of where you sit on the Israeli political spectrum he is regarded as a patriot.   You may recognize him as the former chief of staff to former Prime Minister Ehud Barak or for his role as chief peace negotiator for Israel during the Camp David Summit in 2001 and the Taba talks in 2001.  On the last file I dealt with Gilead’s tax partner, Yehuda Mulaem, and my Canadian Tax Counsel Leigh Somerville Taylor.   Together we successfully saved our client a lot of money and aggravation because both Leigh and Yehuda knew the law in their respective jurisdictions and were experienced in cross border issues.

 

So what’s the bottom line?  What should Stella have done?  I can attest that it’s better to retain the competent professionals in the first place and thereby avoid these issues later on.

 

This short review of the law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

End Of Life Decisions – Do Doctors Have The Right To Decide?

November 11, 2011 in Applications for the Opinion and Direction of the Court, Elder Law, Evidence in Estate Litigation, Halacha and Estate Litigation, Public Policy & Estates by Charles Wagner | 2 comments

Mr. Rasouli was in a permanent vegetative state. Fed through a tube inserted into his stomach, he was only being kept alive by a mechanical ventilator.  Believing there was no realistic hope of recovery the doctors wanted to remove his life support. His family said no.  Who has the right to make these decisions? 

The doctors suggested that they do.   The family disagreed.

As Shia Muslims, Mr. Rasouli’s family believed that as long as a person was alive everything should be done to prevent death.  Accordingly, they opposed the doctors’ plan to withdraw the mechanical ventilation. 

This case was first heard by Madam Justice Himel of the Ontario Superior Court of Justice (FN1).  It was appealed to the Ontario Court of Appeal (FN2).  Now leave is being sought to have the matter heard by the Supreme Court of Canada.   Thus far, the courts have sided with Mr. Rasouli’s family.  This case depends on the definition of “treatment” in the Ontario Health Care Consent Act (FN3) (the “Act”) and the steps set out by the Act to resolve disagreements between doctors and substitute decision makers about treatment plans.  Let’s review the law.

The Act provides that medical treatment shall not be administered without the consent of the patient.  If the patient is not capable of giving consent, the treatment must be approved by the person appointed as the patient’s substitute decision-maker.  Sounds simple?  It’s not. 

Key to the Court’s review is the legal meaning of the word “treatment”(FN4).  Also fundamental to the decision making process are the real wishes of the patient.  The substitute decision-maker’s wishes were unimportant – it’s what the patient wanted to do that is key.

The doctors argued that, in this context, “treatment” as defined in the Act does not include the withholding or withdrawal of treatment that had no medical value to the patient. Hence, the withdrawal of such treatment could be done without the patient’s consent. The doctors argued that the Act merely enshrined the common law which recognized a doctor’s right to withhold or withdraw treatment.  The doctors further argued that according to the common law they were not permitted to continue “inhumane” treatment even if the patient or his substitute decision-maker demanded it.  What did they mean by “inhumane”?  In my review of similar cases, and paraphrasing some of the arguments, it seems that in this situation the doctors may feel that continuing unnecessary treatment diminishes the quality of life of the patient and exposes him to gratuitous discomfort and indignity.  It is the extension of death – not life and they argue is inhumane (FN5).

There was some sympathy at the Ontario Court of Appeal for this position.  While they dismissed the doctors’ appeal the Court recognized that their position was serious and warranted careful consideration.

Let’s examine why they sided with the Rasouli family.  There are a number of definitions relating to “treatment” in the Act and both the Superior Court of Justice and the Court of Appeal pointed out that the definition of a “plan of treatment” involved “… the withholding or withdrawal of treatment in light of the person’s current health condition”.  Moreover, given that Mr. Rasouli’s wishes were not known, the Act allowed the doctors to apply to the Health Care Consent and Capacity Board to disregard the substitute decision-maker’s decision to maintain life support. At issue before the Board would be what was in the best interests of the patient. 

The court decisions will likely only delay the argument as to who has the right to decide.  Both the doctors and the Rasouli Family have a right to appeal to the Ontario Superior Court of Justice the decision of the Board on questions of law or fact. On an appeal, the court is authorized to exercise all the powers of the Board, to substitute its opinion for that of a physician, a substitute decision-maker or the Board or to refer the matter back for a rehearing. (FN6)

Why is this case so important to the Jewish community?

End of life issues have halachic implications.  Do we want a stranger whose views on end of life issues may not be in accordance with halacha to be the decision maker?  It is for this reason that both the Rabbinical Counsel of America (RCA) and Agudath Israel have drafted Halachic Living Wills.  I have written extensively on this topic and refer the reader to http://bit.ly/halivwill  This article canvasses the issues, reviews some relevant case and provide links to both the RCA and Agudath Israel precedents (FN7).  I caution the reader that these precedents were drafted for American jurisdictions.  Accordingly, anyone contemplating their use should review the halachic living will precedents with a competent lawyer in your jurisdiction to ensure they would be enforceable here.   

There is another issue relevant to all Canadians regardless of their religious affiliations.  Our health care system is in crisis.  Many say that it is underfunded and mismanaged.  At the initial hearing before Madam Justice Himel the hospital, separate and apart from the doctors, brought up the issue of limited resources.  At the hearing, their lawyer argued that hospitals could be overwhelmed with individuals with no hope of recovery remaining on life support for extended periods of time and thereby deny those who can be helped access to scarce resources.  This issue was not argued at the Court of Appeal, but it is an issue of importance.  Is the lack of funding a driving issue in this debate? 

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1.  Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 CarswellOnt 1650, 2011 ONSC 1500, 105 O.R. (3d) 761, 231 C.R.R. (2d) 26.  An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 (CanLII).

FN 2.  Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre  2011 ONCA 482.  An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482.

FN3.  See online version of the legislation provide by e-laws which can be found at Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A

FN4.  The Ontario Court of Appeal’s decision at paragraphs 19-24  review the relevant provisions with respect to the use of the term “treatment” under the Act.  See sections 1, 2, 10, and 21.  The Court of Appeal’s analysis is set out below.

20]      Of those provisions, the operation of s. 21 of the Act warrants brief explanation. It sets out the principles that a substitute decision-maker must follow in deciding whether to give or refuse consent to a proposed treatment on behalf of an incapable person.

[21]      Under s. 21(1)1., if the substitute decision-maker knows of a wish, applicable to the circumstances, expressed by the incapable person while he or she was capable, after attaining age 16, then the substitute decision-maker must abide by that wish and give or refuse consent in accordance with it. (Ms. Salasel accepts that that provision has no application in her husband’s case).

[22]      Section 21(1)2. applies where the substitute decision-maker is unaware of any such wish (as is the case here) or where compliance with such a wish proves impossible. Under those circumstances, a substitute decision-maker must act “in the incapable person’s best interests” in deciding whether to give or refuse consent to a proposed treatment.

[23]      Section 21(2) of the Act sets out various factors that a substitute decision-maker must take into account in deciding whether the proposed treatment is or is not in the incapable person’s best interests. Broadly speaking, those factors fall under two heads, one relating to the values, beliefs and wishes of the incapable person (s. 21(2)(a) and (b)), the other to the nature and medical value of the treatment proposed in the circumstances (s. 21(2)(c)).

FN5.  Please see Justice Cullity’s decision Scardoni v. Hawryluck, 2004 CanLII 34326 (ON SC) and in particular paragraphs  39 -50 where he reviews the concept of well being under section 21(2) (c) of the Act.  In this court case a decision of the Board was appealed to the court. The Board directed the family to consent to the removal of their mother from a ventilator. The family argued that by virtue of a power of attorney for personal care they were appointed as substitute decisions makers.  While the decision of the Board was overturned on the issue of “Best Interests” and “Quality of Life” Justice Cullity agreed with the Boards position when it stated, “We thought “well-being” involved more than mere life itself. The phrase is subjective as used because it was used in conjunction with the word “condition,” which connoted to us a more objective assessment of the status of a person’s illnesses and physical situation. “Well-being” includes considerations such as the person’s dignity and levels of pain.”

FN6.      Appeals to the Ontario Superior Court of Justice from decisions of the Board on questions of law or fact are permitted by section 80 of the Act. On an appeal, the Court can substitute its opinion for that of the doctor, the substitute decision-maker and or the Board.  Equally important the Court “may receive new or additional evidence as it considers just.”

FN7.     See the website provided by the Orthodox Union of  Orthodox Rabbis entitled “End of Life Issues – Halachic Resources and Forms”.  This is available on line at http://bit.ly/ouresrc and is an invaluable resource.  Please note that any precedent used has to be taken to a competent lawyer in your jurisdiction to determine if the forms provided are applicable to the particular client and specific jurisdiction.  Questions to be addressed include whether  there will compliance with the formalities of execution in the relevant jurisdiction and whether the requirement under the Halachic power of attorneys to consult a rabbi and be bound by his decision constitute a delegation?   If it does then is the Power of Attorney is invalid or is it saved by the concept of  “protector” as outlined in Waters; Law of Trusts in Canada? I have addressed some of these issues in an article “Are Halachic Powers of Attorney for Personal Care Binding in Ontario?” which can be found at http://bit.ly/halivwill

IS DISINHERITENCE BECAUSE OF SEXUAL ORIENTATION LEGAL?

August 19, 2011 in Challenging the Validity of Wills, Claims Against Estate: Summary Procedure, Dependant Support Claims, Equity, Estate Litigation, Public Policy & Estates, Variation of Trusts, Wills by Charles Wagner

Will a Canadian court vary or set aside a will when a parent disinherits a gay/lesbian child because of his/her sexual orientation?  The law may be different depending on the province.

In Canada, the law balances the idea of testamentary independence against public policy concerns.  While cherishing testamentary freedom, the law intervenes when it finds provisions in the will offensive to public policy and or equity.  In Ontario, this restriction on testamentary freedom has been expressed by laws passed to protect spouses (under Part I of the Family Law Act [FN1]) and dependents (under Parts II and V of the Succession Law Reform Act [FN2]). 

Two true stories from British Columbia:  In both Patterson v. Lauritsen [FN3] and Peden v. Peden Estate [FN4], a parent disinherited or reduced the inheritance of a child because the parent did not approve of the child’s homosexuality.  The Court in each of these cases held that, in today’s society, homosexuality is not a factor that would justify a judicious parent disinheriting or limiting benefits to a child. 

Would the same thing happen in Ontario?  Maybe – maybe not.  In the British Columbia cases, even though the parents had capacity and were not subject to undue influence, their wills were open to challenge on the ground that the parents had disinherited their children without, what the court considered to be, reasonable cause. While the Ontario Court of Appeal has stated that the “moral considerations” underpinning the British Columbia approach apply in Ontario, to my knowledge, there has been no case to date where an Ontario Court has varied a will to benefit a non-dependent disinherited adult child [FN5].  In Ontario, except where a will offends public policy, it is still open to debate whether a capable parent, acting voluntarily, is entitled to disinherit a child - however whimsical, mean-spirited, or controlling such action may seem. 

A comment made by an Ontario judge in 1995 is of interest insofar as it suggests where an Ontario court may draw the line.  In Fox v. Fox Estate [FN6], a decision of the Ontario Court of Appeal, the father named his wife the executrix under his will.  The income was to be used for the grandchildren with the capital for the son.  The will also gave the mother an unfettered discretion to encroach on the capital of the estate for the benefit of her son’s children. She took all the capital, eliminating her son’s inheritance because he was involved with a non-Jew.  The judge commented, “….in response to a query from the bench, counsel in this case were not prepared to argue that any court would today uphold a condition in a will which provides that a beneficiary is to be disinherited if he or she marries outside of a particular religious faith”. The Court viewed the mother’s behaviour as being mala fides and contrary to public policy.

Testators that ignore the changing winds of public policy do so at their own peril.  In M v. H, [FN7] the Supreme Court of Canada compelled Ontario to change the definition of “spouse” as set out in the support provisions of the Family Law Act. Prior to that case, common-law heterosexual couples were included in the definition of spouse, but gay and lesbian couples were not. The Supreme Court of Canada ruled that, for the purposes of support under the Family Law Act, a spouse includes “…either of two persons …”. The court ruled that limiting the definition of “spouse” to heterosexual couples, for the purposes of support, was discriminatory and not justifiable.  In Canada today same-sex marriages are legal.  It is therefore entirely possible that an Ontario court would set aside a provision in a will that disinherited someone because of his/her sexual orientation, on the grounds that such disinheritance offended public policy.

 This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.   The author gratefully acknowledges the assistance of Michelle Kotzer in the preparation of this article.

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FN1.  Family Law Act, R.S.O. 1990, c. F.3

FN 2.  Succession Law Reform Act, R.S.O. 1990, c. S.26

FN3.   Patterson v Lauritsen (1984) CarswellBC 381, 58 BCLOR 182, [1984] 6 WWR 329, 17 ETR 316.  Available on line at Patterson v. Lauritsen, 1984 CanLII 353 (BC SC)

FN4.   Peden v Peden Estate (2006) CarswellBC 2801, 2006 BCSC 1713, [2007] WDFL 1837.  Available on line at Peden v. Peden, Smith et al., 2006 BCSC 1713 (CanLII)

FN5.   See Justice Cullity’s 1998 decision of  Banton v. Banton, 1998 CanLII 14926 (ON SC) and in particular paragraph  36  where he states, “It is hardly necessary to say that the principle of freedom of testamentary disposition is in the background to the issues relating to the validity of the wills of December 21, 1994 and May 4, 1995. If George Banton had capacity and was not subject to undue influence at the time of the execution of one of those wills, its validity and effect are not open to challenge on the ground that he thereby disinherited his children. In this jurisdiction, unlike others in Canada and elsewhere, unless the children are dependants, a capable parent acting voluntarily, is entitled to do this however mean and ungrateful it may seem, or how selfish the motive; hence the focus in this case, as in so many others, on testamentary capacity and undue influence.”

Compare this with the decision of the Court of appeal in Cummings v. Cummings CanLII 9339 (ON CA).  At paragraph 40,  Blair J. A. states, “[40]         In my view these questions have been resolved by the decision of   the Supreme Court of  Canada in Tataryn v. Tataryn Estate 1994 CanLII 51 (S.C.C.), [1994] 2 S.C.R. 807.  There, the Court  held that a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make.  In doing so, it rejected the argument that the “judicious father and husband” test should be replaced with a needs-based analysis: see para. 23.  I see no reason why the principles of  Tataryn should not apply equally in Ontario, even though they were enunciated in the context of   the British Columbia Wills Variation Act R.S.B.C. 1979, c. 435, in which the language is somewhat different from that of  the Succession Law Reform Act.

I also recommend  the reader to see  Susan J. Woodley’s paper entitled “The (Almost, Possible, Probable) Right of an Adult Child to Receive Support”, presented at the Ontario Bar Association 2009 Institute of Continuing Legal Education.

FN6.    Fox v. Fox Estate 1996 CanLII 779 (ON C.A.), (1996), 28 O.R. (3d) 496, 10 E.T.R. (2d) 229 (C.A.),

FN7. M. v. H. [1999] 2 S.C.R. 3. I refer the reader to an aritlce written by Mary C. Hurly entitled “Sexual Orientation and Legal Rights”. The article appears on the Parliament of Canada Website and can be found at Sexual Orientation and Legal Rights (PRB 08-49E) . When considering the impact of the decision and how it reflects on public policy in Canada her conclusion speaks to how a court may view the public policy issue. “Judicial and legislative reforms, particularly since the M. v. H. decision in 1999, have effected a significant shift in Canadian society with respect to recognition of the legal status and claims of same-sex conjugal couples. The watershed nature of this shift is illustrated, most notably, by federal legislation sanctioning same-sex marriage.

Opponents of these reforms continue to argue that the extension of same-sex rights in general, and same-sex marriage in particular, undermine the traditional family and family values. At the same time, some gay and lesbian couples (like some heterosexual couples) do not want either the legal obligations or the benefits that flow from spousal status or marriage. As the 2002 report of the former Law Commission of Canada and other indicators suggest, the question of whether the matter of entitlements based on the marital or conjugal nature of a partnership should be re-examined remains open.”

Unjust Enrichment, Equity and your Mother in Law

August 3, 2011 in Applications for the Opinion and Direction of the Court, constructive trust, Dependant Support Claims, Equity, Estate Litigation, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates, Wills by Charles Wagner | 2 comments

The average person goes to a lawyer because they just feel they were treated unfairly.  I read a case recently and thought long and hard about how the plaintiff, Mary Simonin, must have felt.  Her lawyer could not go to court and just say Mary was treated inappropriately.  We lawyers must apply the facts to legal doctrines and theories.  We rely on older cases to show that in similar circumstances the courts have granted damages to our clients.   So let’s go through the facts of this case, see why Mary felt she was treated unjustly, and look how the courts applied the law to her situation.

Mary, her husband Franco and their children lived on a farm owned by Mary’s mother in law.  They paid no rent.  Franco ran a construction company and used that company to renovate his mother’s farm.  He never charged his mother a penny for what amounted to over $200,000.00 worth of work. Instead, for between 30% and 50% of the cost of the improvements Franco billed his company’s other clients.

Franco died.  Six months later Mary and her children left the farm.  The mother sold the farm for $880,000 and gave $200,000 to her daughter.  Mary and her children got nothing.  Does that sound unfair to you?  It did to Mary.  Were Franco’s children also not entitled?  Didn’t Franco add value to the Property?  Were his children not entitled to the benefit of their father’s work?  The matter went to trial and was appealed (FN1).  One can surely understand how Mary felt cheated.  Let’s see how the courts dealt with her complaint in the legal context.

Mary’s lawyer argued that Franco’s estate had a quantum meruit claim for unjust enrichment(FN2).  Essentially, this Latin phrase describes a legal doctrine standing for the proposition that a person should be compensated for services or goods provided even if there was no legally enforceable contract.  Based on seminal cases such as Peter v. Beblow, 1993 CanLII 126 (S.C.C.), [1993] 1 S.C.R. 980 and Garland v. Consumers’ Gas Co., 2004 SCC 25 (CanLII), [2004] 1 S.C.R. 629 Mary’s lawyer argued that she should be compensated because Franco’s mother was enriched by virtue of the work done by Franco, that Franco suffered a corresponding deprivation for what he could have charged her and there was no juristic (legal) reason for Franco’s mother to get that work done for free.  The other side disagreed. 

While the trial judge and Ontario Court of Appeal agreed that Franco’s mother was enriched they did not believe that he suffered a corresponding deprivation.  In other words – he did not lose anything.  Firstly – it was his company not Franco that did the work.  Secondly the company was paid for the work already, albeit by other customers.  How could Franco have been deprived of compensation for his work if he was already paid for it by his other customers?    Finally – when addressing the third part of this test, that being the absence of a juristic reason for Franco’s mother to retain the benefit, the court pointed out that it was just and fair that the mother keep the benefits without paying for it.  After all, Franco and Mary lived on the property rent free.  They benefited from the renovations and most importantly they never indicated to Franco’s mother that there was any expectation at all of compensation for Franco’s work.

 Before leaving this case I want to address an interesting side point.  Ordinarily, a plaintiff cannot come to court seeking an equitable remedy & compensation for unjust enrichment, if she does not come to court with clean hands.  Even though Franco charged his clients for the work done on his mother’s farm the court did not hold that against Mary.  Why?  Because while improper, those actions were not immediately and necessarily related to the claim (FN3).

 This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

 Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation

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FN 1.    The Court of Appeal Decision is accessible on line at Simonin v. Simonin, 2010 ONCA 900 (CanLII) — 2010-12-24 and the trial decision can also be found on line at Simonin v. Simonin, 2008 CanLII 58155 (ON SC).

FN 2.   On our firm’s website I have provided a case scenario and some of the seminal cases dealing with the doctrine of unjust enrichment.  This might assist the reader in dealing with this issue and I refer you to this link http://www.wagnersidlofsky.com/quantum-meruit-claim.php

FN 3.  See paragraphs 56 -62 of the trial decision at Simonin v. Simonin, 2008 CanLII 58155 (ON SC).  As Daley J. stated at paragraph 62 “ As such, while the manner in which the renovation costs were paid for through Spancrest may have been improper, it is not immediately and necessarily related to the plaintiff’s claim of unjust enrichment.  In the result, I conclude that that arrangement does not bar the plaintiff from making the claim for a remedy based on alleged unjust enrichment.”

Are Promises Enforceable?

June 10, 2011 in Applications for the Opinion and Direction of the Court, constructive trust, Elder Law, Equity, Estate Litigation, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates, Wills by Charles Wagner

Lora and Jeffrey started living together.  As their 23 month relationship grew stronger Jeffrey promised Lora that when he died Lora would get his RRSPs worth about $1,750,000 as long as they were still living together.  Jeffrey insisted that Lora sign a cohabitation agreement before he would keep his promise.  Before the agreement was signed Jeffrey died.  Was Jeffrey’s promise legally enforceable?  At trial Justice Brown of the Ontario Superior Court of Justice (FN1) decided that Lora would get the money.  Jeffrey’s estate appealed.

Lora sued the estate on a number of different grounds.  I would like to focus on one which the Ontario Court of Appeal (FN2) addressed – was Jeffrey’s promise legally enforceable under the doctrine known proprietary estoppel? Let’s start by defining some terms. 

Let’s assume Jeffrey made a promise to Lora. Proprietary estoppel is a legal doctrine which prevents Jeffrey from enforcing his legal rights with respect to property once he made a promise or representation not to do so.  This is applied if Lora relied on the representation/promise and would suffer if Jeffrey or his estate enforced his legal rights.  The court would force Jeffrey or his estate to keep the promise if it would be palpably unfair to allow him to strictly enforce his legal rights.  Proprietary estoppel is an example where courts will look to equitable doctrines to address unconscionable wrongs.

Sometimes courts will use equitable remedies, like proprietary estoppel, to address a situation where the application of strict legal rights would be unfair.  Under these circumstances the court may ignore a contract or a testamentary document and provide the plaintiff with a remedy.  By applying equitable principals courts will sometimes enforce promises.

The Ontario Court of Appeal in Schwark Estate v. Cutting(FN3) reviewed a number of causes of action and remedies through which a promise may be enforced.  In the course of that analysis the Court of Appeal summarized the essential elements of proprietary estoppel as follows:

  1.  the owner of land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the owner’s property;
  2. in reliance upon this belief, the claimant acts to his detriment to the knowledge of owner of the land; and
  3. the owner then seeks to take unconscionable advantage of claimant by denying him the right or benefit which he expected to receive.

So what does proprietary estoppel have to do with Lora and Jeffrey’s situation in the Belvedere v. Brittain Estate?  Lora’s lawyers raised a number of equitable arguments (FN4) which the court dismissed.  The Ontario Court of Appeal dismissed those arguments finding that Jeffrey’s estate was not unjustly enriched by Lora’s contributions and accordingly the trial judged erred in applying the doctrine of constructive trust.  At that point the court considered the alternative remedy of proprietary estoppel.

The first issue addressed by the Court was whether this doctrine of enforcing promises relating to land could be used to enforce promises relating to RRSPs.  The Ontario Court of Appeal noted that there is some controversy on this point, but it proceeded with the analysis on the assumption that it did apply. (FN5).  A key issue in enforcing such a promise is that Lora had to rely on it to her detriment.  Seeing that she did not rely on the promise and suffer any loss the court dismissed the proprietary estoppel argument.

So does that mean that promises are not legally enforceable?  Maybe.  The Ontario Court of Appeal decision makes room for such an argument if it meets the criteria set out in  Schwark Estate v. Cutting.   In an article published in the Estate and Trusts Quarterly, Ian Hull, a leading estate litigator stated (FN6), “While the doctrine of proprietary estoppel has deep roots in the British courts, the recent developments in the context of estates seem to point to a new and effective remedy available to claimants in the context of estate litigation”.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

 Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation

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FN1.  Belvedere v. Brittain Estate  2007 CanLII 32666 (ON S.C.), (2007), 45 R.F.L. (6th) 81. Justice E.R. Browne of the Superior Court declared that Ms Lora Belvedere was entitled to a constructive trust in Mr. Brittain RRSPs at the time of his death, to be satisfied by payment to Ms. Belvedere of $1,750,000.

FN2.   Belvedere v. Brittain Estate, 94 O.R. (3d) 655 (2009) OCA .  To access the case on line see  bit.ly/Belvedere/Brittain

FN3.  Schwark Estate v. Cutting, 2010 ONCA 61.  To access the case on line see http://bit.ly/Schwark

FN4.  Lora’s lawyers argued that the estate of Mr. Brittain was unjustly enriched and that the trial judge was correct in finding a constructive trust on $1,750,000 of the estate assets in favour of Lora.  Alternatively, Lora’s lawyers argued that the trial judge  should have considered the remedies of a “resulting trust” and or “proprietary estoppel”. 

FN5.  See paragraph 67 of  Belvedere v. Brittain Estate, 94 O.R. (3d) 655 (2009) OCA.  To access the case on line see bit.ly/Belvedere/Brittain

FN6.  Ian Hull and Suzana Popovic-Montag’s article “Proprietary Estoppel — An Innovative Claim Against the Assets of an Estate can be found in the Estate and Trust Reports, 3rd series 2009.  The cite is 55 E.T.R. (3d) 44.

May 16, 2011 Seminar – Bnai Brith Seminar – “Financial Predators and the Elderly – Banton v Banton.”

May 1, 2011 in Applications for the Opinion and Direction of the Court, Capacity, Challenging the Validity of Wills, constructive trust, Dependant Support Claims, Elder Law, Estate Litigation, Executors / Trustees, Fraud, Wills by Charles Wagner

The Estate and Trusts Group, Lawyers Division Bnai Brith and the adult education committee of Shaarei Shomayim are sponsoring a continuing legal education seminar entitled “Financial Predators and the Elderly – Banton v Banton.” 

In this case the 88 year old George Banton fell in love with a 32 year old waitress named Muna. He married Muna and made a new will that disinherited his children.  Virtually all contact with his kids stopped.  At the time Mr. Banton was depressed, terminally ill, and mentally unwell. On hearing that their father was certified as incapable and that Muna, had withdrawn $10,000 from his account, George’s sons used their power of attorney to transfer George’s money into an irrevocable inter vivos trust under which they and CIBC Trust Corporation would be the trustees.  The trust allowed the money to be used for George’s during his life and would go to his children after his death.

When George died his children challenged the new Will and the validity of the marriage to the much younger Muna.  She challenged the sons’ creation of the trust.  The fact situation in Banton v Banton underscores the risk to the elderly of being victimized by financial predators who look to marry a vulnerable older person as a means to take away their money and disinherit their children.  To quote the judge in the Banton case, “I have no doubt at all that this influence was deliberately exerted to enable her to obtain control and, ultimately, the ownership of his assets…. After she consented to marry him, her influence became overwhelming and irresistible. The speed with which she was able to procure a will and a power of attorney in her favour is testimony to this as well as to his weak and vulnerable mental condition. …Thereafter, he was held incommunicado as far as his family were concerned…. I believe George Banton was a mere puppet, when he was not simply a bystander, during the guardianship proceedings.”

These continuing B’nai Brith legal education seminars have been going on for approximately four years.  Many members of B’nai Brith are professionals whose practice involves servicing senior citizens and their families.  B’nai Brith runs these seminars in order to meet present and future educational needs of our membership’s legal and accounting profession.  These seminars were inspired, in part, by legal problems of concern to the Jewish community as well as the community at large. 

To educate attendees these seminars feature some of Ontario’s premiere estate litigators.  These lawyers will be participating in mock court proceedings based on the fact scenario of  Banton v Banton.  Prior to the moot court Rachel Blumenfeld, an estate lawyer at Miller Thomson (bit.ly/rblumenfeld), will explain the legal options open to children wanting to protect elderly parents in second marriage situations. Thereafter Rabbi Joe Kanofsky of Shaarei Torah will speak from an ethical pastoral perspective about the obligations and choices to the children, parent and professionals when dealing with this type of scenario.  The Rabbi’s presentation can be used by lawyers towards fulfilling part of their mandatory 3 hours of continuing professional development related to professional responsibility, ethics and practice management.

 The judge for the moot appeal will be Jordan Atin (http://bit.ly/jordanatin).   Archie Rabinowitz (http://bit.ly/arabinowitz) and Kimberly Whaley (http://bit.ly/kwhaley) will be representing the Banton children and Ian Hull (http://bit.ly/ianhull) and Charles B. Wagner (http://bit.ly/cwagner) will be representing the waitress. 

Each attendee will receive a binder and a flash drive which will contain papers prepared by the lawyers about different aspects of the case as well as some actual court documents relating to Banton.  At the end of the seminar there will be a question and answer session from the panel and the participants.

 The seminar will be held Monday, May 16th, 2011 at Shaarei Shomayim 470 Glencairn Ave ON M5N 1V8.  Registration starts at 7:30 am. and the seminar starts at 8:00 a.m.  For information or to register, call Hyla Reichmann at (416) 633-6224, ext. 128, or email hreichmann@bnaibrith.ca .

A Trustee Is Not Entitled To Use Trust Property For His Own Benefit

March 29, 2011 in Applications for the Opinion and Direction of the Court, Costs, Costs in Estate Litigation, Evidence in Estate Litigation, Executors / Trustees, Passing of Accounts and Executor's Fees, Public Policy & Estates, Retirement and Removal of Trustees, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates, Variation of Trusts by Charles Wagner

 Justice Strathy of the Superior Court of Justice ordered that Mr. Zimmerman repay nearly $500,000 in compensation he took as an attorney for property (FN1).  The judge also ordered that he personally pay the legal costs of the other side amounting to $284,362.19 (FN2).    What happened?

 Let me first introduce you to Robert and Signe McMichael.  During their lives they collected Canadian art from artists like Tom Thomson and the Group of Seven members. In 1964 they donated their art collection to the province of Ontario and by 1981 the Collection had grown to include more than 2,000 artworks. This Collection is truly a Canadian national treasure. (FN3).

In 2001 Robert and Signe McMichael made mirror wills (FN4).  Both husband and wife left everything to each other.  Signe’s Will, (like her husband’s) said that if her spouse predeceased her, then when she died, Signe’s assets would be donated to the Collection.   Mr. McMichael died in 2003 and his assets were inherited by his wife. 

 After her husband’s death, Mrs. McMichael signed a power of attorney appointing Mr. Zimmerman as her sole attorney for property.   In early 2004 Mr. Zimmerman’s lawyers prepared a trust document appointing Mr. Zimmerman as the trustee.  Mr. Zimmerman then transferred virtually all of Mrs. McMichael’s assets including the art collection into the trust so that there was virtually nothing left in her estate. 

 Under this new trust, Mr. Zimmerman had sole and unfettered discretion to decide which art related organization would receive Signe’s assets years after her death.  Effectively, the new trust rendered the Will meaningless. Instead of inheriting everything immediately after Signe’s death, the Collection would get nothing.  If the new trust went unchallenged it was totally up to Mr. Zimmerman to decide whether the Collection would receive any of Signe’s assets.

 When Mrs. McMichael died in 2007 her niece and husband, the executors under the Will, commenced a legal proceeding.  They asked the court to declare that the Power of Attorney and the Trust were void on the ground that Signe lacked capacity.   They also wanted Mr. Zimmerman to pass his accounts in a separate proceeding. 

 The only issue before Justice Strathy was Mr. Zimmerman’s passing of accounts.  To pass his accounts Mr. Zimmerman had to show what assets of Signe’s he received and how the money under his control was spent.  As an attorney for property it was Mr. Zimmerman’s statutory and common law duty to keep proper accounting records and proof/vouchers to demonstrate that the money spent was for the benefit of Mrs. McMichael.  This duty is imposed on trustees because it is a basic fundamental principle of trust law that Mr. Zimmerman, as a trustee, was not entitled to use the trust property for his own personal benefit.  If Mr. Zimmerman did use Signe’s assets for his own personal benefit or if he could not account or explain to the court how he spent the money then he would be liable to return it.

 When Mr. Zimmerman tried to pass his accounts the fireworks started.

 Whatever accounting that was provided was incomplete.  Mr. Zimmerman could not or would not provide proper explanations about how he spent the money.  The court found that Mr. Zimmerman breached his fiduciary duties and failed to exercise his powers and duties diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.  Mr. Zimmerman did not comply with his obligation to keep proper accounts and was not in a position to prove that he administered the trust prudently and honestly. He did not have the accounts ready and was not able to give full information when required. 

 Mr. Zimmerman infuriated the court because he failed to respond to appropriate objections to his accounts.   The judge drew an adverse inference that by failing to respond properly to the questions raised by the Collection and the estate trustees Mr. Zimmerman was guilty of taking the money for himself and would be required to reimburse the estate for those disbursements and expenses (FN5).

 This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

 Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1.  Please see Zimmerman v. McMichael Estate  2010 CarswellOnt 3481, 2010 ONSC 2947, 57 E.T.R. (3d) 101, 103 O.R. (3d) 25 and in particular paragraphs  29 and 88 and 90 for the proposition that a fiduciary may not profit from his role, paragraph 30 for the fiduciary’s duty to account, and paragraphs 35,43 45, 49 and 89. 

 

FN2.  Please see the second Zimmerman decision.  The first was decided on May 20, 2010 and cited in FN1.  The second was decided on October 4, 2010  and can be found as Zimmerman v. Fenwick 2010 CarswellOnt 8372, 2010 ONSC 5452.

FN3.  Robert and Signe McMichael  founded  the Collection,. Some of the history of the Collection, is described in the judgment of the Court of Appeal in McMichael v. Ontario (1997), 36 O.R. (3d) 163, [1997] O.J. No. 4661 (Ont. C.A.), leave to appeal refused, (S.C.C.)..  Their website can be found at http://www.mcmichael.com/

FN4.  It is important not to confuse the terms “Mirror Wills” and Mutual Wills.   Mirror Wills are identical to one another.  Mutual Wills creates an agreement which equity enforces that the wills will not be changed.   I refer you to the explanation of Histrop, Estate Planning Precedents which excerpts from Canadian Forms of Wills, 4th ed. BY Terence Sheard and the late Rodney Hall,  “  Although a will is by its nature revocable, a testator may, by agreement, create equities in his assets that will be enforceable against those who derive title from him (Dufour v. Pereira (1769), 1 Dick. 419; Stone v. Hoskins, [1905] P. 194; 39 Hals., 3rd ed., p. 851; see also Re Hagger, [1930] 2 Ch. 190). The commonest manner in which such equities are created is through the making of joint or mutual wills  but the mere fact that two wills are made in identical terms does not of necessity imply any agreement to constitute equitable interests so as to, in effect, make the will of the survivor irrevocable” .

FN5.  The finding of an adverse interest is very important with respect to accounting.  Under the common law section 32(6) and 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30  and under the regulations Accounts and Records of Attorneys and Guardians, O. Reg. 100/96 the attorney for property has a absolute strict duty to in accordance with the regulations, keep accounts of all transactions involving the property of the grantor of the Power of attorney.  Justice Strathy, in his judgment, addresses what happens when the attorney fails to keep proper records: 

Duty to Account:  trustee has an obligation to keep proper accounts. A trustee must keep a complete record of his/her activities and be in a position at all times to prove that he/she administered the trust prudently and honestly. He/she must have the accounts ready and give full information whenever required. (see para 30)

Adverse Inference:  An attorney who fails to retain receipts supporting substantial cash withdrawals or expenses charged against the incapable person’s property has not adequately carried out his/her duties and will be held personally liable for the unsubstantiated withdrawals (para 35)  It is a basic principle of trust law that a trustee is not entitled to use the trust property for his or her own personal benefit.  Trustee has onus to prove disbursements were legitimate.   If a trustee cannot account for or explain disbursements or expenses charged against a trust he/she is personally liable to the trust for those disbursements (paragraphs 43 45, 49 and 89).

Where There is Life There is Hope

February 26, 2011 in Applications for the Opinion and Direction of the Court, Court Appointed Guardians of Property and of Person, Public Policy & Estates by Charles Wagner

When should hospitals take away a person’s right to make end of life decisions? 

This topic is once again in the news as Moe Maraachli and Sana Nader are at odds with the London Health Sciences Centre.  The parents want their terminally ill child discharged from the hospital to die at home.  The hospital refused.   The parents lost at the Health Care Consent Board and lost their appeal in court (FN1).  Without commenting on this very sad case it once again raises the issue of who has the right to make life ending decisions for people who are not capable of making those decisions themselves.  Should it be the parents of a child or the hospital?  If an adult has signed a power of attorney for personal care should the attorney for personal care or the doctor decide? 

A case in Ontario which dealt with this dilemma was Scardoni v. Hawryluck (FN2).  Here a power of attorney authorized two daughters to make decisions concerning their mother’s personal care and to give or refuse to consent to treatment. Their mother always told them “where there is life there is hope”.   So even though the doctor said there was no chance for their mother to recover, and in spite of their mother’s pain, the daughters insisted that all efforts be expended to prolong their mother’s life.  The doctor disagreed because while the ventilator and drugs would sustain the mother’s life, the mother’s disease was incurable and in the doctor’s opinion the resulting pain, discomfort and loss of dignity resulted in a lower unacceptable quality of life.

Before analyzing the judge’s decision let’s review the law.  The governing legislation in Ontario is the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A .   Under section 10 (FN3) a doctor may not administer treatment unless he has the consent of the patient.  It is arguable whether he needs the patient’s consent to withdraw treatment.  Where the patient is incapable of giving his consent, pursuant to section 10, the doctor needs the permission for the recommended treatment from the Substitute Decision Maker who was designated under the power of attorney for personal care or alternatively by statute.  If the Substitute Decision Makers will not consent to the doctor’s proposal the doctor can apply to the Health Care Consent Capacity Board who has the authority to order the Substitute Decision Maker to consent.(FN4)  Either party may appeal the decision of the board to a judge of Ontario’s Superior Court of Justice (FN5).   That is what happened in Scardoni v. Hawryluck.  The Capacity Board directed the daughters to follow the advice of the doctor.  The daughters refused to go along with the doctor who wanted to take their mother off the ventilator and instead appealed the Board’s decision to the Ontario Superior Court of Justice.

The Scardoni v. Hawryluck case was decided by Justice Cullity.  He had to decide whether the Power of Attorney was specific enough to indicate the mother’s wishes, and if not, was there any evidence to establish what the mother would have wanted done in this situation.  The hospital’s lawyer argued that the power of attorney was too vague because the mother could not have known about how painful and hopeless her situation would be.  Given that their mother’s instructions were unclear, the doctor argued that the legislation directed the daughters to make their decision based on what was in the best interests of their mother.  The doctor argued that it was in the patient’s best interest to withdraw treatment because the mother no longer had any quality of life.  While Justice Cullity agreed that quality of life was a factor in determining the best interests of the patient, he still granted the daughters’ appeal and stopped the hospital from withdrawing the life saving treatment.(FN6)  In his view, the power of attorney was specific enough and the mother made her treatment wishes known to her children.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1.   For newspaper reports on this story I refer you to http://www.nationalpost.com/related/topics/index.html?subject=Capacity+Board+of+Ontario&type=Organization

 FN2.   Scardoni v. Hawryluck 2004 CarswellOnt 424, 5 E.T.R. (3d) 226, 12 Admin. L.R. (4th) 67, 69 O.R. (3d) 700

 FN3.  Section 10 provides that treatment shall not be administered unless the doctor is “of the opinion that the person is capable with respect to the treatment, and the person has given consent; or he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act

 FN4.  The principles for making decision by a Substitute Decision maker is set out in section 59 of the Act.   A person who makes a decision on an incapable recipient’s behalf concerning a personal assistance service shall do so in accordance with the following principles:  1. If the person knows of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, the person shall make the decision in accordance with the wish.  2.  If the person does not know of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the recipient’s best interests.   Under section 69(3) in determining whether the substitute decision-maker complied with section 59, the Board may substitute its opinion for that of the substitute decision-maker

 FN5.  See section 80.  (1) which states that a party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

 FN6.  Section 10 provides

 A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 

 In Scardoni v. Hawryluck there is a very interesting part of this judgment at paragraphs 39 – 41.   Justice Cullity  said as follows: 

The first question is whether s. 10(1)(b) imposes an obligation on a health practitioner to obtain the consent of the substitute decision-maker to a decision to withdraw, or withhold, particular treatment. Notwithstanding the inclusion of such proposals in the definition of a “plan of treatment” and the inclusion of such plans in the definition of “treatment,” Mr. Underwood suggested that the correct interpretation of s. 10 might well be that implementation of a proposal to withdraw, or withhold, treatment is not to be considered an administration of treatment within the meaning of s. 10. While a proposal of a plan of treatment that includes a withdrawal, or withholding, of one or more particular treatments would be a proposal of treatment within the opening words of s. 10, the obligation “not to administer treatment” would, on this interpretation, apply only to positive steps to be taken to treat the patient’s condition. On this line of reasoning it would follow that a substitute decision-maker’s consent – or, presumably, that of a capable person – to a withholding of treatment is not required by s. 10(1) and, to that extent, in Mr. Underwood’s submission, the Act does not alter the common law.. 

 In other words, arguably, doctors do not need permission to withdraw or withhold treatment.

DNA Testing and Estate Litigation

February 11, 2011 in Applications for the Opinion and Direction of the Court, Claims Against Estate: Summary Procedure, Court Proceedings to Ascertain Heirs of an Estate, Estate Litigation, Evidence in Estate Litigation, Executors / Trustees, Probate, Public Policy & Estates, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates, Wills by Charles Wagner

“She is not my daughter.”

The court heard evidence that the late Kerry Kelly did not believe Shauna was his daughter. (FN1)    Kerry believed that Shauna’s mother “… cheated on me with no sex protection”.  The judge believed Pamela Proulx, Kerry’s sister, who said that Kerry never recognized Shauna to be his biological daughter.  Aunt Pamela applied to court to obtain a DNA test of Shauna and compare it to a sample of Kerry’s DNA to see whether Shauna was Kerry’s biological daughter.  Shauna opposed the application.  Let us review some of the reasons why the DNA test was worth fighting about and the legal arguments used by each side.

Kerry died intestate which means that he passed away without a legal will.  According to the law of Ontario (FN2) where an unmarried person dies intestate his children receive the estate. (FN3)   For all purposes, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children (FN4).  Since Kerry did not have a will Shauna’s entitlement to an inheritance turned on her being the biological child of Kerry.  So now we understand why Aunt Pamela wanted Shauna to take a DNA test and why Shauna resisted taking one.  If the DNA test proved that Shauna was not Kerry’s real daughter then she does not get an inheritance from Kerry’s estate.  On what grounds could Shauna argue that she did not have to take the DNA test?

Shauna argued that that under s. 8 of the Children’s Law Reform Act Kerry was presumed to be the father of Shauna because he was married to Shauna’s mother at the time of Shauna’s birth and he was also listed as Shauna’s father on the Statement of Live Birth.  Shauna argued that it was up to her aunt to rebut that presumption of paternity and, until she did, no DNA test should be ordered.

Aunt Pamela relied on section 10 of the Childrens Law Reform Act which provides that in a court case in which a child’s parentage is at issue the court may order that DNA tests take place and if that person refuses to submit to a DNA test the court may draw such inferences as is appropriate.  There is no mention in section 10 that Aunt Pamela had to rebut the presumption of parentage.  Now that you have heard both sides – what do you think Justice Coats ordered?

Justice Coats ordered that the DNA test take place.  In his view DNA testing was objective, impartial and scientific evidence and it was in the interests of justice for the court to consider the best evidence.   He preferred DNA testing to the contradictory and less certain evidence offered by the parties and other family or community members.  Does that mean that judges will always order DNA testing?  Not necessarily.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

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FN1.  This name of this case is Proulx v. Kelly, 2010 ONSC 5817 and can be found on line at http://www.canadalawbook.ca/summaries/pdf/10334117.pdf

FN2.  See Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 and “Law of Intestacy in Ontario” found at http://www.wagnersidlofsky.com/articles/intestacy-in-ontario.php

FN3.  This is not a simple matter. For example, see section 47(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 which deals with the situation where a child dies before his parent.  For example, if father had 3 children A, B and C.  Assume A had 2 children of his own.  A died before father.  If father died without a will then his estate would be divided in three equal shares.  1/3 to B, 1/3 to C and 1/3 to A’s children.  With respect to Ontario Intestacy law even if A died before his father the intestate inheritance law acts still gives A his share of the estate just as if A did not predecease his father.  The late A’s portion of his father’s estate goes to A’s children.

FN4.  See section 1 of the Children’s Law Reform Act

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