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Posts from the ‘Ontario Succession Law Reform Act’ Category

Testator’s Freedom to Make Even “Unsavoury or Distatesful” Bequests Upheld – In Some Cases

will

Testator’s Freedom to Make Even “Unsavoury or Distatesful” Bequests Upheld – In Some Cases

Although my law firm focuses primarily on Family Law, we also provide legal advice and services in relation to Wills and Estates, and it’s a topic that I don’t often write about.

But perhaps I should: There is an interesting recent case from the Ontario Court of Appeal, for example, that is certainly worth looking at.

Imagine this scenario: A 71-year old man name Eric had two daughters with his first wife, whom he later divorced. After their parents’ separation, one of the daughters went to live with her mother in England; the other, named Verolin, lived with her father in Canada.

But when Eric, who was black, learned that Verolin was pregnant and that the baby’s father was a white man, it caused a permanent rift in their relationship; eventually Eric cut Verolin off entirely and never met his grandson, who is now 13 years old.

After Eric died, his Will revealed that although he had included the other daughter and her children, he had specifically excluded Verolin, ostensibly because (according to the wording in the Will itself) she had shown “no interest in [him] as her father.” However, the extrinsic evidence from witnesses told a different story: Eric had actually excluded his daughter Verolin in order to show his disapproval of the fact that her son’s father was white.

Verolin applied to the court to have the Will declared set aside and declared invalid because it was against public policy on racial grounds. Verolin was initially successful in the lower courts.
On appeal, the court reflected on the basic question of whether it was entitled to scrutinize Eric’s Will – which was unambiguous on its face – merely because a potential beneficiary like Verolin was being excluded.

In this regard the Appeal Court pointed out that a “testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle”, and that this testamentary autonomy “should not be interfered with lightly, but only in so far as the law requires.” With that said, the court added that the testator’s right can still be constrained by public policy considerations in some circumstances.

But even applying those general principles here, the fact remained that the wording on the face of Eric’s Will was not, in and of itself, legally objectionable. It adverted only to cutting off Verolin for not communicating with him; any other racially-discriminatory motives on Eric’s part were hinted at only through external evidence. Plus, even though she was his daughter, under Ontario law Verolin was not entitled to demand a share of Eric’s estate. Nor was there anything in the Will that called for the trustees or beneficiaries to act in a way that was discriminatory, unlawful, or contrary to public policy, in order to give effect to Eric’s wishes.

In ultimately upholding Eric’s Will, the Court of Appeal concluded:

I conclude that to apply the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where, as here, a disappointed potential heir has been disinherited absolutely in favour of a different, worthy heir, would effect a material and unwarranted expansion of the public policy doctrine in estates law. Absent valid legislative provision to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator’s unsavoury or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom.

Do you agree with the Court’s ruling?

For the full text of the decision, see:

Spence v. BMO Trust Company, 2016 ONCA 196

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

10 Ways to Get Information About Family Law – video


 

Wednesday’s Video Clip: 10 Ways to Get Information About Family Law

In this video we discuss how there are many professional people, organizations and other sources that can help you or provide information about family law issues:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for many of these resources, and

10. A librarian at your public library may also be able to help you.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Disgruntled Family Litigants: Is Judge-Shopping an Option?

judge shopping

Disgruntled Family Litigants: Is Judge-Shopping an Option?

Imagine this scenario: You and your Ex go to family court to get a ruling on which of you gets custody of your children. After a full hearing, the judge rules against you: Instead of getting the custody order you want, you get only access to the children on specified terms. You are unhappy. You launch and appeal, but are unsuccessful. When it comes time to cooperate with access, you drag your feet and make things difficult.

What’s your next move?

According to a recent Ontario Court of Appeal decision, “judge-shopping” for a different judge (and hopefully a friendlier hearing venue) is not the answer.

In D.G. v. A.F. the high-conflict dispute between the separated parents as to custody and access of their children had led to a series of prior court decisions. Many of these were not in the mother’s favour, since they awarded or confirmed custody to the father, with supervised access to her. The mother’s position and approach, however, remained intractable. As the court put it:

At every opportunity, including this appeal, the [mother] has earnestly sought to have reversed the trial judge’s award of custody to the [father] and supervised access to the [mother]. In her factum, the [mother] raises concerns with the trial decision, showing that she does not accept the trial outcome despite the dismissal of her appeal. She seeks custody of the children, which is not a remedy that is open to her on this appeal; she has been unwilling to work within the custody and access regime that resulted from the trial.

As the court alluded, the mother was not co-operating with the proposed access scheme: she did not follow-through on providing suggested names for access supervisors, and did she comply with other judge-imposed conditions for making her access to the children possible. As one of the earlier motion judges put it:

[N]o matter how [the mother] feels about the custody and access orders in this proceeding she must comply with my Orders so that she can see her children. [The father] wants her to see the children. He understands that it is important for the children to have a relationship with their mother. So much so that he has put forward his own suggestions for an access supervisor.

Yet in addition to dragging her feet and depriving the children of access to her, the mother continued to challenge the earlier custody/access ruling in numerous aspects. Her latest point of contention focused on the fact that on an earlier motion, the judge (who happened to be a woman) had taken took control of or “remained seized of” the court file, ordering that any future court appearances in the matter be heard by her alone. As the court explained:

The [mother] seeks to escape the motion judge’s “influence”. She argues that the motion judge had no basis for seizing herself of the case indefinitely. The [mother] argues that this effectively puts the motion judge in a conflicting position because any motions to change will inevitably involve the motion judge in reviewing her own decisions. The appellant fears that the motion judge will not treat her fairly.

The court rejected the mother’s line of argument, however. Under the Ontario Family Law Rules courts are actively encouraged (and indeed in some scenarios, mandated) to engage in case management; this was particularly important in a case like the current one, since “the frequent resort to the court in high-conflict cases would otherwise rapidly consume too many judicial resources, as judge after judge is forced to learn the details of an ever-burgeoning file.”

After citing several cases dealing with procedural limitations on the judge taking control of the matter (none of which were found to apply here), the court also rejected the allegation that the motion judge had been biased against her, or that she had been unfair in awarding costs to the father in the circumstances.

The Court of Appeal ended the judgment by encouraging the mother to simply accept the situation and comply with earlier rulings. It said:

I encourage the [mother] to comply with the access orders and to make the required arrangements as soon as possible so that, with successful experience, more normal access arrangements could be justified. There is no short cut available to the [mother].

For the full text of the decision, see:

D.G. v. A.F., 2015 ONCA 290 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Battle of the Ex-Spouses – Who Gets the $2.4 “Prize”?

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Battle of the Ex-Spouses – Who Gets the $2.4 “Prize”?

In a contest between two former spouses, which of them gets the deceased husband’s $2.4 estate? That was the question for the court in a recent Ontario case called Quinn v. Carrigan.

The man, Ron, had been estranged for 12 years from his first wife Melodee, with whom he had two now-adult children. They did not divorce or even enter into a formal separation agreement, but Ron promised that he would always support her. For the last 8.5 years of their separation, he had been living common law with another woman, Jennifer, who had a limited income and medical problems. At the time of his sudden death from a heart attack at age 57, Ron was the sole financial support for both women.

After Ron died, it came to light that he had left nothing in his will or pension for Jennifer; instead, he left his whole $2.4 estate to Melodee and their daughters. He also gave a 1/3 share of his $1 million pension to each of them. The title to the condo that he and Jennifer lived in together at the time of Ron’s death was actually in his and Melodee’s name.

Jennifer applied under the Ontario Dependent’s Relief Act, which allows a court to order Ron’s estate to pay her support – whether or not he left a Will – in cases where he failed to adequately provide for her financially. The court awarded her $350,000 to be paid from Ron’s estate and pension.

But after two trials, and two appeals, the true legal characterization of Jennifer’s status for claiming under the estate and pension was still uncertain. Under pension legislation, for example, the question of who was Ron’s “spouse” was unclear: at least one earlier court had found that it was Jennifer (who had been living with him in a common-law relationship at the time of Ron’s death) rather than Melodee (who was technically still married to him). A later appeal ruling had overturned that finding, concluding that the mere fact of living with Ron did not turn Jennifer into a “spouse” for pension purposes.

Returning to the dependent’s relief application (which was separate from the pension issue), the court reviewed the complex details of Ron’s estate and the various holdings, expenses and entitlements of both spouses and the adult daughters. Although Ron was certainly entitled to arrange his estate so that his first wife Melodee receive the bulk of it (and that it would eventually trickle down to his children and grandchildren), his wishes could not ignore or override Jennifer’s valid legal claims. While there was evidence that he intended to provide for Jennifer somewhat, those intentions were never implemented and in any event they would not have been enforceable unless Ron made full disclosure to her of his substantial wealth (which he did not want to do) and unless she obtained independent legal advice (which was never done).

The court explained that under that same dependent’s legislation, Melodee was still entitled to a “preferential share” of Ron’s estate; however, it was unfair to ignore Jennifer’s support entitlement, particularly since she was in poor health and impoverished. (She had returned to work shortly before Ron’s death, but had lost her job due to an economic downturn. Her health concerns also limited her employment prospects, and had no assets other than her personal belongings, and had some debts. In contrast, the first wife Melodee and the daughters were living comfortably).

Ultimately – and after some complicated analysis – the court allowed Jennifer’s appeal, and awarded her $750,000, comprised of $550,000 for her legal entitlement to spousal support (calculated using the Spousal Support Advisory Guidelines and based on Ron’s significant annual income) plus another $200,000 reflecting her “moral claim” to Ron’s estate.

For the full text of the decision, see:

Quinn v. Carrigan, [2014] O.J. No. 4589, 2014 ONSC 5682 (Div. Ct.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

 

Top 10 Tips on Drafting Domestic Contracts

contract

Top 10 Tips on Drafting Domestic Contracts

Any domestic agreement (which in Ontario can include a marriage contract, cohabitation agreement or separation agreement), must be drafted with great care and attention to detail. After all, it is a binding legal contract that – when done right – will govern the rights and responsibilities of the spouses or relationship partners who have entered into it.

 

At the risk of stating the obvious:   If you want a good, airtight domestic contract, you should see an experienced lawyer who specializes in Family Law.   Among other reasons, this is because the provincial Family Law Act that governs many of the matters that are purportedly covered by domestic contracts, and it is vital to understand the interplay between the legislation and any agreement you may reach with your spouse.

 

But before you consult a lawyer, here are some tips that we can provide in order to help formulate the types of issues you want to address in your own domestic contract, and to help you understand and navigate the agreement-drafting process:

Tip 1:Be Thorough

  •  Any good domestic contract must cover all the legal points, avoid inadvertent loopholes, and withstand the passage of time. It should also contemplate certain tangential implications (such as income tax consequences), and should provide for a mechanism by which any disputes are to be resolved.

Tip 2: Be Precise

  •  The agreement must also be in clear precise language that you and your spouse can easily understand and follow.   Legal jargon – or “legalese” as it is sometimes called – should be avoided; this includes old-fashioned terms such as “party of the first part”, “aforesaid” and “hereafter”.

Tip 3: Confirm the Facts

  •  Makes sure that the statements and pre-suppositions that form the basis of the agreement are factually correct. This includes obvious things such each spouse’s legal name and the address of any homes or recreational properties; but it also includes making sure that any dates or date-ranges, business addresses and bank account numbers referred to in the agreement are reflected with precision.

Tip 4:  Be Specific

  •  Individual or family assets should be itemized and described in great detail, to avoid uncertainty and confusion. This naturally includes physical tangible objects, but can also include more esoteric items such as corporate shares, interests in timeshare properties, etc.   It is wise to include long lists of items in a Schedule to the agreement rather than the main body, to avoid cluttering the main part of the agreement, and to allow for easier amendment of those lists if necessary.

Tip 5: Avoid the Kits

  •  There are some domestic agreement “kits” on the market, that purport to provide legal clauses that can be customized to suit.   However, these should be avoided, because One Size Usually Fits None.   Indeed, it is dangerous to use any precedent unless you fully understand its meaning and the legal implications; that’s what lawyers are for.

Tip 6: Avoid Boilerplate, Too

  •  Similarly, even if you avoid the pre-fabricated agreements, it’s important to beware of using standardized “boilerplate” clauses, that are drafted broadly and aimed at covering off a wide range of scenarios and contingencies. Only rarely will these provide the best coverage of your unique situation.

Tip 7: Try to Guess the Future

  •  The agreement should contemplate that there may be gradual changes over time, or that certain likely events may arise in the future.   These might include changes in custody, or the re-marriage of one or both spouses, for example. These kinds of potential scenarios should be discussed with your spouse and reflected in the agreement whenever possible.

Tip 8: Watch Out for Loose Ends

  • In tandem with the need to address future contingencies is the need to identify “loose ends” and “loopholes” in the drafted agreement. This is another area where the advice of a good Family Law lawyer is particularly helpful.

Tip 9: Be Realistic

  • Although the agreement should be comprehensive, it cannot possibly purport to govern every aspect of either spouse’s day-to-day living.   Terms or obligations that are unrealistic or too difficult to live by will be the first ones that get breached, with a dispute between spouses being the inevitable consequence.

Tip 10: Get it Reviewed

  • Most domestic agreements are drafted during a point in time when the two of you are in a positive, happy, pro-relationship headspace (e.g. in the case of pre-nuptial contracts or cohabitation agreements), and it’s precisely the time when many important matters can get overlooked, glossed over, or brushed aside as “unimportant”.   It’s therefore particularly important to have such agreements reviewed by a lawyer specializing in Family Law: Not only will that lawyer know the law and apply a trained eye to the wording of the document, but he or she will emphasize the need for each of you to get independent legal advice.

These tips are just a starting-point, but they go a long way toward making sure that any domestic contract that you draft will have the intended effect between you and your spouse.   This in turn will avoid disputes – or worse, having the agreement (or parts of it) be overturned by a court.

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

 

Can Dead Husband’s Kids Drag 90-Year-Old Widow’s Adult Children into Court?

estate doc

Can Dead Husband’s Kids Drag 90-Year-Old Widow’s Adult Children into Court?

In a recent Ontario case called Brash v. Zyma, the outcome hinged on certain statutory technicalities, but the question came down to this: Could the adult children of a man, who was on a second marriage at the time of his death, pull the second wife’s children into litigation, hopefully to get a court order that they must support her and thereby keep her from taking more from the Estate than the roughly $20,000 he had left her in the Will?

When they each married for a second time in 1990, Charles was 61 and Dorothy was 67. Charles had previously been married to another woman for 34 years, and had six children with her. Dorothy had four adult children of her own, and had been widowed for 15 years.

When Charles died in 2012, Dorothy was just shy of 90 years old. Her adult children were now all in their 60s. Charles left Dorothy $13,000 in his Will, plus almost $9,000 tied to the value of his home.

However as his wife and a “dependent,” Dorothy also claimed support from Charles’ estate under the provisions of the Ontario Succession Law Reform Act (SLRA). This was necessary because Dorothy was in poor health, had moved into a nursing facility even while Charles was still alive, and had assets of only $60,000 in account with one of her children. Her monthly expenses were said to exceed her income by up to $1,000 per month.

But rather than see Dorothy dip into their father’s Estate funds under the succession law provisions (which money would otherwise go to them), Charles’ own children brought an application to the court to have Dorothy’s three surviving children added to Dorothy’s court application. (Dorothy had declined to add them herself). Charles’ children did so on the basis that Dorothy’s offspring had a legal obligation under certain provisions the Ontario Family Law Act (FLA) to support their mother in light of her modest financial circumstances.

Charles’ children also claimed that given Dorothy’s age and health, she could provide for her own needs from existing resources, particular in light of what their father left her under his Will. Finally, they questioned the motives behind her SLRA dependent-support application: As the court put it, they “go on to say that this whole exercise is being managed by [Dorothy’s] children on behalf of their elderly mother and is nothing more than an effort by them to transfer a larger portion of the late [Charles’] estate from his children to them.”

The court’s jurisdiction hinged on the interpretation of these two competing statutes: the FLA and the SLRA. If Charles and Dorothy had separated before he died, the matter would be simple: Dorothy would be entitled to claim spousal support under the FLA, and under that legislation, the court would have the right to unilaterally add anyone to the litigation who possibly had an obligation to support her as well – which arguably encompassed Dorothy’s children.

As it happened, though, Charles had died, and that made Dorothy eligible for a support claim under the SLRA. She had brought her application under that legislation, which now governed. There were no equivalent provisions to those found in the FLA. Charles kids asked the court to make the same type of order, by analogy.

The court granted the order, and added Dorothy’s three remaining adult children to the litigation. Charles’ children were merely trying to draw Dorothy’s kids into the litigation because they might have an obligation to support her. The court was able to rely on the longstanding basic legal principle that the court should have all interested parties before it, in order to allow the court to properly adjudicate the matter on the merits.

For the full text of the decision, see:

Brash v. Zyma, 2014 ONSC 4066

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.