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Did Testator’s Chronic Alcoholism Affect His Ability to Make a Valid Will?

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Did Testator’s Chronic Alcoholism Affect His Ability to Make a Valid Will?

In a recent Ontario Court of Appeal decision involving a Wills and Estates matter, one of the main questions was whether the testator – a man named Jack – was so impacted by his chronic alcoholism and the after-effects of a heart attack that he did not have the legal capacity to validly make the Will that entirely excluded his wife Loretta.

In Dujardin v. Dujardin,  Jack and his brother Noel jointly owned and operated farm property that had been in their family since 1958.  They both executed mirror Wills stating that upon their death, they would leave their equal interests in the farm to each other.  Jack’s first Will of this nature, which he executed prior to his marriage to Loretta in 2000, excluded her from the Will completely. A second Will, which he made in 2009 after having a heart attack two years earlier, likewise excluded her in favour of his brother Noel.  (However, he did designate her as the sole beneficiary of a RRIF valued at $123,000 at the time of his death).

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Loretta challenged the validity of Jack’s Will, but her claims were dismissed at trial.   On appeal, she argued that the trial judge had been wrong to rule inadmissible the evidence of a doctor who had  concluded Jack lacked the capacity to make the will, due to his chronic alcoholism and heart attack-related cognitive impairment.

The Appeal Court was left to evaluate the premise for the doctor’s conclusions, as against the other established facts.  As the Court put it:

Jack had a difficult relationship with alcohol.  The evidence established that, during the day, he was a productive worker. However, when he finished his work in the late afternoon, Jack would go into the Town of Aylmer to have a couple drinks. When he returned home, he drank into the night, until he fell asleep. Noel testified that Jack purchased 40 ounces of liquor each day.

That said, the Court also noted evidence showing that Jack could function well enough notwithstanding his excessive drinking:

Despite his alcohol use, the evidence established that, around the time he executed his 2009 wills, Jack was able to function properly at work and in his business dealings. A parade of witnesses from the local farming community testified that, while they knew that Jack liked to drink, they noticed nothing wrong with his cognitive functioning.

Against this background, the Court addressed Loretta’s objections that the trial judge had erred in ruling the doctor’s evidence as to Jack’s testamentary capacity inadmissible.

On this point the Court noted doctor had never met Jack, but rather was relying only on his medical history and hospital records to conclude that he suffered from “Organic Brain Syndrome.”  This, the doctor concluded, had impaired Jack’s cognitive ability to comprehend and understand the contents of any legal document that he signed in 2009.  Also, based on Jack’s pattern of drinking, the doctor had surmised that he was either drinking or experiencing withdrawal when he attended his lawyer’s office to sign the Will.

Unfortunately for Loretta, the Court of Appeal found that these conclusions by the doctor were – at best – speculative.  For example, Jack’s heart attack had occurred almost two years before he signed the Will, and there was no convincing evidence that this event affected his cognitive ability.   Nor was there compelling proof that Jack suffered from “Organic Brain Syndrome” as speculated.   Overall, the trial judge had not been wrong to exclude the doctor’s evidence was inadmissible.

The Court also took a broader look at the Will’s legal validity under the law.   Once a Will is proven as having been “duly executed with the requisite formalities, and having been read over to or by a testator who appeared to understand it”, it will be generally presumed that the testator knew and approved of the contents, and that he had the necessary testamentary capacity.  The onus to prove these elements falls to the proponent of it – in this case, Jack’s brother Noel.

Although were some suspicious circumstances relating to Jack’s mental capacity at the time he signed his Will, Noel had addressed them to the court’s satisfaction by the evidence of the other witnesses who were present.

The Court dismissed Loretta’s appeal, but pointed out that she may be able to make a claim under Family Law legislation.

For the full text of the decision, see:

Dujardin v. Dujardin

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

Calculating Child Support: What About Those Self-Employment Expenses?

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Calculating Child Support: What About Those Self-Employment Expenses?

In a recent case called Sawma v. Zeidan, the court was tasked with calculating the child support amounts payable by the separated father to the mother for the child they had together. The essential issue was the father’s annual income for a 5-year period; those figures would be used to calculate his ongoing support obligation amounts as directed by the Child Support Guidelines.

To their credit, the former couple had largely agreed between themselves as to the correct amount for the father’s gross income figure for each of the five years in question. However, they remained at a crossroads over the proper amount of his deductible business-related expenses for each year. The father’s purported deductions under this category related to usual items such as his cell phone, internet, gas heating and bookkeeping expenses, but he also claimed hefty amounts as “mileage expenses” – in some years totalling the equivalent of between one-third to one-half of his gross income.

The mother questioned the father’s proof that these business expenses were valid, claiming they were either unbelievable or poorly-supported. She also pointed out that he had a pattern of hiding income.

In order to address the key question, the court drew from a 2017 Alberta Court of Appeal decision called Cunningham v. Seveny, that set out the guiding principles (which are of equal relevance to Ontario). Those principles are:

• Onus. When a self-employed parent argues that his or her gross income should be reduced by business expenses for purposes of calculating income for child support, the onus or burden of proving that the expenses are reasonable falls clearly on the parent claiming them.

• Evidence. A parent who claims a deduction for business-related expenses must present evidence to justify those expenses.

• Explanation. If the claimed expenses also resulted in a personal benefit to the parent claiming the deduction, then “an explanation is required for why those expense deductions (or a part of them) should not be attributed to the parent’s income for child support purposes.”

• CRA Not Deteminative. Even if expenses have been approved for income tax purposes by the Canada Revenue Agency, this does not mean that the test for deducting expenses from income for child support purposes has been met.

• Child’s Right. Child support is considered to be the right of the child. A parent’s legal obligation to pay child support that fairly reflects the parent’s income in accordance with the Child Support Guidelines is not to be curtailed or limited by income tax statutes that allow for business expense deductibility.
In this case, and with the exception of certain car-related expenses (for which the father filed six thick volumes of receipts) the court concluded that he had failed to prove any of the so-called business expenses were reasonable and properly deducted from his gross income for calculating child support.

The court said:
Despite the amount of paper that was filed and the work I accept must have been devoted to compiling the hundreds of receipts and adding up the totals, the [father] has not provided the evidence I would require to find that the receipts and totals represent expenses that were all actually incurred by the [father] or that they represent business expenses exclusively and not personal expenses.
For example, the father did indeed provide evidence that he used his car for business purposes, but not the extent to which it was used for that reason, rather than for personal use. He claimed aggressive amounts for car-related expenses, but did not prove to the court’s satisfaction which of them were business-related. Likewise, his proof about his cell phone, internet, office space, and gas heating charges was also deficient.

The court added:
In addition to finding that the [father’s] evidence in support of his claimed expenses is insufficient, I find that, overall, the [father’s] evidence lacks credibility. I find that he is not a party who can be given the benefit of any doubt. My conclusion in this regard is based on the steps the [father] took to conceal income from the [mother], which included preparing a letter the [father] informed the [mother] his employer had prepared and falsifying bank records. In both cases, the [father] initially denied but eventually admitted what he had done.

The court also noted the father received a mileage allowance from three different companies. He argued these should be excluded from income the same way that Canada Revenue Agency (CRA) permitted this on his tax return, but the court rejected this notion. The mileage allowance represented money that went into the father’s pocket, and therefore had to be taken into account in determining his income for child support purposes regardless of what the CRA did.

With that said, and having recognized the father received mileage allowances, the court conceded that permitting him to claim certain car-related business expenses was appropriate, such as certain amounts for gas and repairs.

For the full text of the decision, see:

Sawma v. Zeidan

Cunningham v. Seveny

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

Is a Child Conceived After a Parent’s Death Still Entitled to Inherit?

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Is a Child Conceived After a Parent’s Death Still Entitled to Inherit?

It’s a narrow legal issue, and one that likely does not come up often. But an amendment to the Ontario legislation governing who gets to inherit a deceased’s parent’s property makes it possible for children conceived after a parent’s death – through Assisted Reproductive Technology – to inherit.

The amendment has the cumbersome title of the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, and amends the provincial Succession Law Reform Act (SLRA) and some related legislation. Its main achievement is to amend the definitions of “child” and “issue” in the SLRA to expressly include a child and a descendant who is conceived and born after the death of a parent. The term “posthumously-conceived child” is used describe such offspring.

The changes, which came into force January 1, 2017, recognize the general inheritance rights of posthumously-conceived children, provided certain conditions are met. These include:

• Giving written notice to the Estate Registrar for Ontario. The spouse of the deceased person must give notice indicating that he or she may use the deceased’s “reproductive material” (meaning sperm or eggs or an embryo) to try to conceive a child.

• The child is actually born. Any posthumously-conceived child must be born no later than the third anniversary of the deceased’s death. (The court can extend this in some circumstances).

• Court declaration of parentage. The spouse must apply to the court for a declaration that the deceased person is considered to be the parent of the posthumously-conceived child. This involves the spouse proving that the deceased person consented in writing to be the parent of such a child prior to his or her death, and that the consent was not withdrawn.
The expanded definition of “child” and “issue” applies to the distribution of the deceased parent’s estate, whether or not that parent left a Will.

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

Court Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

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Court Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

In a recent Newfoundland decision, called Sexton v. Tipping, the court made what is arguably a sensible and realistic observation about children’s adaptability to change, especially at a young age, and how that can bolster a court’s decision-making on factors relating to custody and primary care.

In that case, the court wrote:

It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. … The crux of these scenarios is change – for the parents and for the children.

Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.

On the facts of that case, the court took comfort from that reality as part of its rationale for allowing a change to the custody arrangement. In light of the child’s best interests, he was placed in the joint custody of both parents, but would have primary residence with his mother, who was allowed to relocate to Arizona with the boy.

Arguably, for any child the move to an entirely new country is quite a drastic change. Yet the court seems to be saying that divorce, separation and changes to family dynamics are so commonplace in “the times in which we live” that the seriousness of its impact on children may have been diluted, especially for the younger ones.

Should the reality of widespread divorce and broken families in our society diminish court’s focus on the “best interests of the child,” which legislatively-mandated to be the paramount criterion in child custody and access matters?

What are your thoughts?

For the full text of the decision, see: Sexton v. Tipping

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

Have you seen our new Youtube videos?

The team over at Russell Alexander Family Lawyers worked extremely hard to bring you these new question and answer videos. We’ve covered an array of topics and are excited to share this new information with 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 RussellAlexander.com

Thank You For 20 Wonderful Years

Thank You For 20 Wonderful Years

 

Last week the team at Russell Alexander Family Lawyers celebrated one of their very own. Gabrielle Underwood has been an integral part of the team for 20 years. Everyone came together to commemorate the occasion with great food and lots of laughs.

We wish you luck in your future endeavors

Thank you for 20 wonderful years!

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

We’re Here To Help

Social media is about communication, and that’s exactly what we intend to do. If you have a family law related question, feel free to reach out to us using a medium that you’re comfortable with.

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

Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations on Income Tax and Spousal/Child Support


Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations on Income Tax and Spousal/Child Support

Income tax: Not a popular concept even at the best of times. But add in the obligations, which arise in the context of paying child or spousal support, and it’s enough to cause heart palpitations in most Canadians.

This is because the Canada Revenue Agency rules relating to how support payments are to be treated are quite complex. To make things more confusing, the federal Income Tax Act has separate rules for spousal support as opposed to child support.

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