Archive for April, 2012

April 26, 2012

Update on the Rasouli Capacity Case

Mr. Rasouli’s diagnosis has changed somewhat, prompting a motion by the family to quash a Supreme Court of Canada appeal by his medical practitioners seeking to overturn an order denying doctors the ability to discontinue life support without consent of Mr. Rasouli’s substitute decision-maker or an order of the Consent and Capacity Board.

http://www.cbc.ca/news/health/story/2012/04/25/vegetative-patient-gets-new-diagnosis.html

http://www.theglobeandmail.com/life/health/end-of-life/vegetative-patient-now-able-to-give-thumbs-up-fuelling-debate-over-life-support/article2413296/

http://www.theglobeandmail.com/news/opinions/editorials/rasouli-case-shows-benefit-of-doctors-discussing-treatment-options-with-patients-before-surgery/article2416384/

April 25, 2012

When Can One Person Kill Another and Still Share in the Estate?

Yesterday, the Ontario Court of Appeal provided some insight into and refinement of the long-standing rule of public policy that a person who kills another cannot share in the deceased’s estate, or in this case, in proceeds of an insurance policy.

In Dhingra v. Dhingra Estate, the Court had to determine whether a husband, who had killed his wife, is entitled to proceeds of a life insurance policy for which he was the named beneficiary.  The husband was tried on a charge of second-degree murder and found not criminally responsible on account of mental disorder.  The issues before the Court were (1) whether the Judge below had improperly applied the public policy rule to deny the husband the proceeds of the policy and (2) whether the Civil Remedies Act, 2001 (Ontario) applied in the circumstances to similar effect.

The Judge below found that the line of cases from the United States holding that the public policy rule only applies in cases of intentional killing was not the law in Canada.  The Judge went on to find that, despite the determination that the husband was not criminally responsible for his act, he had nonetheless physically committed second degree murder, a somewhat remarkable statement given that the criminal court had found otherwise.  As a result, the Judge applied the public policy rule and denied the proceeds to the husband.

The Court of Appeal disagreed, finding the law to be that a person who is not criminally responsible for an act on account of mental disorder is not prevented from taking under an insurance policy.  Because the public policy rule “is founded in the theory that people should not profit from their crimes, or more broadly, by their own wrongs”, the Court found that if a person is not morally responsible for the act, there is no reason to apply the rule – in other words there is no moral wrong.

The Court relied on authority of the Supreme Court of Canada and the Ontario Courts from the 1960s and 1970s supporting a common law exception to the policy rule of forfeiture in instances where a person is “insane”.  In addition, the Court relied on more recent developments supporting the exception.  In particular, the Court referenced amendments to the Criminal Code to remove the insanity defence and replace it with the concept of not criminally responsible on account of mental disorder.  The Court reflected on the policy reasons for the amendment, noting that a mentally ill offender is poorly served by being punished for an offence for which he or she is not morally responsible.  The Court also quoted from the Supreme Court of Canada that “Parliament has signaled that the NCR [not criminally responsible] accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation”.  The Court also looked to legislative exemptions to the public policy rule in the United States and to the approach in other common law jurisdictions.

The other issue to be resolved in the case was the application of the Civil Remedies Act, 2001 (the “Act”).  Section 3 of the Act permits an application by the Attorney General (Ontario) for an order forfeiting property that is proceeds of unlawful activity.  “Unlawful activity” is defined in the Act to include “an offence under an Act of Canada, Ontario or another province or territory of Canada”.  In addition the Act provides under s. 17 that “proof that a person was … found not criminally responsible on account of mental disorder in respect of an offence is proof that the person committed the offence”.  The issue was whether those provisions changed the common law with respect to the exception to the public policy rule.  While the Court accepted that the Civil Remedies Act, 2001 is an indication that public policy in Ontario favours preventing persons from profiting from wrongdoing, even where found not criminally responsible by reason of mental disorder, the Court held that the Act does not supplant the common law exception to the public policy rule.  The Court found that, “[A]t its highest, the Act indicates that the rule [i.e. the exception] ought not to be applied automatically”.

The Court reconciled the competing policies by allowing the common law and the Act to operate in their respective spheres.  It held that as the Legislature had only recently addressed the issue, it did not seek to wholly abrogate the common law, but intended to leave the common law rules intact.  The provision in the Act requiring an application by the Attorney General was found to be an intended limitation on the availability of remedies under the Act and therefore a limitation on any restriction of the common law rule.

Interestingly, the Court noted that the effect of an order under the Act would be a forfeiture of the policy proceeds to the Crown, a result it clearly found to be unsatisfactory.  In what appears to be a suggestion to the Legislature, the Court of Appeal stated that a more compelling expression of public policy would be to deem the accused to have predeceased the victim, rendering him or her unable to participate in the insurance policy or estate, but allowing for others to do so rather than simply forfeiting proceeds.

April 23, 2012

Driving Technology and the Older Driver

While concerns are raised about an increase in the number of older drivers on the road , technology should eventually ameliorate the effects of aging on certain diminishing cognative abilities, such as reaction time and certain navigation skills.  Several US States are in the process of drafting legislation that will permit so-called “driverless” vehicles to use public roads.  In the UK, research is underway into technology designed to make driving easier for seniors.  A car means mobility and lessens the isolation and dependence that many experience in senior years.  A few more years on the road can make all the difference.

April 20, 2012

Senior takes caregiver to court over home

We must always be cautious in commenting on cases before the Courts where allegations have yet to be proven.  That being said, the situation in this story, if borne out, illustrates the level of vulnerability that some older members of our society face in dealing with those meant to ensure their best interests.  The obvious answer is to obtain legal advice before entering into any agreement, but that is too simplistic.  It is precisely people in these positions of vulnerability who are least likely to seek advice, or are convinced that legal advice is not necessary.  Preventing these situations is difficult, but we are likely to see more cases like this in future.  Information and education regarding elder abuse is available.  We need to work on getting it to those who need it most.

http://www.thestar.com/news/article/1164880–ajax-senior-takes-caregiver-to-court-over-477-000-home

April 19, 2012

Global dementia cases expected to exceed 115 million by 2050: WHO

Of course the consequences of an aging population mean an increase in age-realted disease.  Dementia plays an undeniable role in instances of elder abuse and many disputes surrounding estate planning and, consequently, estate administration.   The emotional, financial and legal burden on families is incredible.  As this articles demostrates, it appears that the situation will only worsen in the years to come, increasing the need for greater protection for those affected.

http://www.theglobeandmail.com/life/health/new-health/conditions/alzheimers/global-dementia-cases-expected-to-exceed-115-million-by-2050-who/article2398632/

April 17, 2012

Volunteering – A Retirement Career?

http://www.theglobeandmail.com/life/giving/ask-the-kielburgers/how-do-i-volunteer-my-retirement-years-so-i-truly-make-a-difference/article2404014/?from=sec434

April 16, 2012

Home-care support for elderly fails caregivers, report finds

http://www.theglobeandmail.com/life/health/new-health/health-news/home-care-support-for-elderly-fails-caregivers-report-finds/article2403241/

April 13, 2012

Is 75 the new 65?

http://www.theglobeandmail.com/report-on-business/careers/career-advice/on-the-job/is-75-the-new-65/article2400324/

April 11, 2012

Interesting perspective on the practice of law today by a former Supreme Court of Canada Justice

http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/the-supreme-courts-retired-but-hardly-retiring-ian-binnie/article2397731/page1/

April 10, 2012

Joint Tenancy and Dependant’s Relief Claims

In two previous posts, we looked at specific situations where parties have unsuccessfully argued for severance of joint tenancies; in the context of an estate in bankruptcy and in the context of separation of spouses prior to death.  Today, we look at a recent case where a claim of severance was made, again unsuccessfully, in the context of a dependant’s relief claim.

In Su v. Lam, the Ontario Superior Court of Justice found that Mr. Su, a common-law spouse of the deceased, was a dependant for the purposes of a dependant’s relief claim under the Succession Law Reform Act (the “Act”).  Mr. Su was not named as a beneficiary in the will of the deceased.  The man to whom the deceased was still legally married at the date of her death was named as estate trustee.  As of the date of death, the deceased and the estate trustee still owned two properties in joint tenancy.  Mr. Su made an application against the estate for dependant’s relief.  The case centred on the availability of these properties to satisfy Mr. Su’s claim.

Section 72 of the Act provides for a form of statutory severance of a joint tenancy for the narrow purpose of making assets available for dependant’s relief claims.  Specifically, the capital value of any disposition of property held by the deceased and another as joint tenants at the date of death shall be included as testamentary dispositions as of the date of death and shall be deemed to be part of the deceased’s net estate for purposes of ascertaining the value of his or her estate, and is available to be charged for payment in satisfaction of an order for dependant’s relief.  Therefore, for the purposes of a dependant’s relief claim only, the survivor of a joint tenancy may not have an absolute right to ownership of property.

Unfortunately for Mr. Su, the Court found that the provisions of s. 72 only apply if an application for dependant’s relief is made within six months of the issuance of a certificate of appointment of estate trustee, as required by s. 61(1) of the Act.  The Court held that, after the expiry of this limitation period, the ability under the Act to treat jointly held property as estate assets lapses.  Mr. Su did not make his application within the required six months. 

However this was not the end of the story.  If an application is made more than six months after the certificate is issued, s. 62(2) of the Act allows a court, “if it considers it proper”, to make an order for dependant’s relief “as to any portion of the estate remaining undistributed at the date of the application”.  However, the Court held that in such circumstances, the party seeking relief would have to show that there were undistributed assets as of the date of his or her application.  Therefore, Mr. Su would have to show that there was a severance of the jointly held property at common law while the testator was alive.  Otherwise, the property would devolve to the survivor upon death and would therefore not be property of the “estate remaining undistributed”.

As in Hewson, the Court noted that at common law, a joint tenancy could be severed in one of three ways.  Firstly, where a party unilaterally acts on one’s own share, such as by selling or encumbering her or his interest.  Secondly, where there is a mutual agreement between the co-owners to sever.  Thirdly, where there is any course of dealing sufficient to intimate that the interests of the co-owners were mutually treated as constituting a tenancy in common.  Finding that neither the first or second circumstances applied, this case turned on an application of this third “course of dealing” rule.

The Court found that Mr. Su had not met the onus on a party seeking severance of a joint tenancy.  The Court found that while the estate trustee and the testator were separated, mere separation is insufficient to establish severance.  The Court required more – some course of dealing showing that the parties intended to treat their interests as separate.  The Court was not able to find evidence of such dealings.  What it did find was that the deceased and the estate trustee appeared to have had little contact regarding the jointly held properties after separation.  The lack of dealing showed a lack of intention to deal with their interests separately.

Of course, the biggest issue here is the six-month limitation period.  For a party seeking dependant’s relief, it is crucial to meet this deadline.  If the application is made in accordance with the Act, a party benefits from the statutory inclusion in the estate, not only of jointly held property, but of certain gifts, money held in joint accounts, certain monies and property held in trust and life insurance proceeds.

DON’T DELAY.