Court Approval - Hull on Estates #81
In this week's episode of Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss court approvals. They talk about the court approval application process and the global impact of court approvals in every area of law.
Court Approval - Hull on Estates Podcast #81
Suzana Popovic-Montag: Hi and welcome to
Welcome to
Ian Hull: Hi Suzana, it’s Ian Hull here this morning and with you, Suzana Popovic-Montag. We are pleased to be able to step back into the microphone, so to speak, and do our
Suzana Popovic-Montag: That’s for sure, Ian. It is great to be back.
Ian Hull: And Suzana, I know you’ve been busy with your own blogging and certainly your own speaking. I was pleased to be involved with you in a conference that we just did for the Law Society of Upper Canada where we talked about issues relating to…essentially a group of issues but one of the main issues that we were talking about is the one that we want to talk about today. And that is really how we deal with situations where you need Court approval or where you are dealing with special circumstances of, for example, in a personal injury action, where you’re dealing with special circumstances of how you manoeuvre those actions through the Court system. The program that you were speaking with me at the Law Society was one just more focused on personal injury cases and capacity issues and we had a great turn out for that and really had a great experience talking about some of the issues that we want to sort of flush out today.
I know you also were hosting and soon to be on the web, our Breakfast Series, which was now a few weeks ago in the sense that by the time that this is on air on the Internet, will have been a few…probably 10 days since our Breakfast Series but I know you were also emceeing for that.
Suzana Popovic-Montag: It’s been a great time for these kinds of programs, Ian. There’s a lot of CLE this fall season. And it’s funny how this issue of Court approval sort of arises in almost any context, and it’s not just in the estate litigation area but as you say, you know, in the personal injury area as well.
Ian Hull: So with us at
Suzana Popovic-Montag: That’s a great idea, Ian.
Ian Hull: So as I say, this is everyone’s issue. And the way I look at a Court approval application is I want to do two things. One is, I need to streamline the process. And I know you had some comments in terms of why we need to streamline that process from a costs standpoint and so forth, some of the economic realities. And second of all, I look at it from the standpoint of really a standard of almost perfection, because like a probate application where we will apply for probate, these Court approval motions can get bumped out of the system fairly easily if we’re not carefully applying the Rules and carefully analyzing what we’re trying to accomplish for this. Because ultimately this is a judge and they are doing to audit, so to speak, the approval that we’re seeking.
Suzana Popovic-Montag: And just to step back for one moment, Ian. I think it’s really important to sort of stress, you know, why these Court approval motions have to be brought and how it is that a judge approaches these when they’re actually making that determination. And the truth is, that we’re faced with these situations because we have beneficiaries who are incapable. And either they’re minors and can’t consent on their own behalf, or they are somehow mentally or physically disabled or incapable, so that again, they can’t consent to something on their own and so they need the benefit of someone else consenting on their behalf.
Ian Hull: And we in estate circles, we try to add another, what I call the “belt and suspenders” approach, and that is that we will also insist on serving those who are, I would say capable but unrepresented, or who have not actively been involved in the process. And when we go to get Court approval, we will often, and not in every case, but we will often re-serve the whole group of those with a financial interest just to refresh their involvement, so that we can say to the judge. We told them, of course, at the outset, because we’re obliged under the Rules to serve these people. But when we go to wrap this up, we say they’re going to get a second kick at the can and say to the judge, look, they haven’t responded to the beginning and they still haven’t responded. There is some controversy with that sort of second serving, so to speak, and service on them again, with some lawyers who say well, if you followed the Rules at the outset, you have met the standard. But I know you and I talked off air, so to speak, about this and this whole idea of the second service. You and I seemed to be in some agreement on.
Suzana Popovic-Montag: And particularly based on experience in the past where I personally have had a situation where one of those people who was served, chose not to participate, suddenly surfaced right at the moment when we were trying to seek Court approval, and necessarily sort of upset the whole process. So at that point, we did have to address that issue.
Ian Hull: So, as I say, I mean, you and I agree on this, we just can’t see the down side and although there is a modest controversy on that, we like the approach better and it serves our clients, we find, much more efficiently and it raises the comfort level for the judge. And that comes back to my whole point. I mean, my theory, as I say, with Court approval is that we want to avoid being bounced out of the system, so to speak. We want to make sure that the evidence is complete before the judge so that we’re not bounced.
Suzana Popovic-Montag: Also, you want to make sure that you’re following the Rules, the Rules of Civil Procedure. You’ve got to read them and you’ve got to make sure that they’re properly being applied, otherwise again, you’re going to get bounced.
Ian Hull: And I really like with the Rules, I just sort of often will refresh my memory on some of the particulars of what’s going to be needed before I begin the whole Court approval process. For example, if I were getting Court approval under Rule 7 where there are minors or disabled, I’ll sit down and re-read the Rule. The final part of the, I guess the protection from being bounced out of the system is that I also like to, and it’s sometimes a little frightening, is just to re-look at the deal that was cut to make sure that it’s going to pass the mustard with the judge, him or herself, so that they’re not looking at it sort of askew saying, well, you know, you managed to follow the Rules, you’ve given me the evidence sufficient to give you the Court approval, but I just don’t like the deal. And so you want to make sure that you’re able to sell the deal as well and make sure that you’ve re-thought it and made sure that you’re ready on your feet to essentially sell this used car to the judge.
Suzana Popovic-Montag: And I think that really is the key because when you’re in the throws of litigation, you get so caught up into the whole process and you’re finally seeing the light at the end of the tunnel with a potential settlement, it might seem, you know, practically the right way thing to do. But when you’ve got someone who’s sitting there, not having been privy to all of the difficulty in the litigation process, just sort of judging with the benefit of hindsight, that’s where the real difficulty lies in trying to, as you say, sell the deal.
Ian Hull: So the other component, and this is really more of a practical comment and practice comment in a sense when you’re dealing with these Court approval motions. And as I say, we’ll talk about in a minute some of the areas where these fall into. But I really have to focus internally with my files to systemize the process. Because if you look at this, most of the time, once you’re going to get Court approval, the clients aren’t really anxious to see further delay nor see additional costs from the legal fee standpoint.
Suzana Popovic-Montag: And so do you have any suggestions, Ian, on how to do that systemization?
Ian Hull: Yeah, I mean, it depends on each situation. But internally here what we’ve tried to do over the past few years is really bring in clerks to assist and to make sure that (a) that they’re knowledgeable about what each motion, and that we categorize the type of motion we’re bringing, so that they’re the ones doing the leg work, because that helps keep the fees down and as I say, the clients do not want to be spending any more money. Once they’ve cut the deal, they’re essentially exhausted by the litigation process and they don’t want to see more bills or see more time on this than has to be done, so I’ve used clerks as a sort of core starting point to bring these motions.
Suzana Popovic-Montag: And then, I guess the next step would just be to make sure that, you know, from a legal perspective or a substantive perspective, you’ve reviewed the deal and added to the Court approval motion materials so that you can essentially sell the deal to whoever it is that’s ultimately approving it.
Ian Hull: For sure. Now, so finally just on this comment of Court approval process, I don’t want to understate the necessity to obviously do the sorts of things that we’ve talked about, check the Rules, check the deal, check the evidence. But I also note that, from my perspective anyway, our practice is that this kind of approval process touches on so many different areas of the law in estates law and maybe we can just talk about a few of those examples, just to give an illustration so that we’re not just talking about a very minor sliver of our practice. Indeed, it actually arises in many, many, if not all, of the areas of law that we end up litigating in a contentious environment and then close the deal, so to speak.
Suzana Popovic-Montag: That’s right, Ian. And especially, and the most obvious instance where you have incapable beneficiaries. So, for instance, in a Will challenge proceeding, normally in those circumstances we’ll seek Court approval at the end of the day to make sure that the terms of whatever settlement is ultimately reached, are blessed, so to speak, by the Court.
Ian Hull: And we see it in dependent relief claims, because again, minor children might have a claim. For example, if a wife dies, say separated spouses and then the wife dies in the course of maybe at a young age and they have minor children and, of course, in the split up the husband and wife have done their Wills to make sure that all of their estates go to their children, not to their former spouses, the minor children could have a big part of any dependent relief claim.
Suzana Popovic-Montag: That’s for sure. And we often also do it in interpretation proceedings and the reason for that is because we’re typically acting for an executor in that circumstance who is coming to some solution or some interpretation of a provision of either a trust or a Will document, and we want to make sure that again that that’s protected with the sanctity of a Court Order.
Ian Hull: And we’ve talked about the situation where the personal injury claims, that’s the most obvious and one that, as I say, you and I both spent half a morning at the Law Society talking, not just ourselves, with a great group of lawyers. There was John McLeish from McLeish Orlando, Dale Orlando. There was Linda Waxman from the Office of the Children’s Lawyer. The Office of the Public Guardian and Trustee was represented by Louis Leibowitz. And it was a really good session and one that I highly recommend the materials on in that sense.
Suzana Popovic-Montag: And just as part and parcel of the personal injury proceedings, also the guardianship process. Often times in those situations we’re seeking Court approval as well because we are required to do so in order to make sure that the proposal is in the best interests of the incapable person.
Ian Hull: Well, that’s great Suzana. Thanks so much. I think we’ve covered off this topic. There is much more in-depth available materials on this. We’ve got a paper on the Internet that, if it’s not posted by the time this is downloaded, we’ll certainly get on top of that. As I say, the video of my presentation and your hosting of our Breakfast will be coming down in the next few months and I hope that we’ve been able to illustrate sort of the three core components: get your evidence organized, make sure you’ve read the Will and make sure you can sell the deal in your oral submissions when you’re seeking these Court approval of the settlement so that you actually close the deal. And I put it akin to a corporate closing. If you’ve done the deal and you’ve signed the Agreement of Purchase and
Suzana Popovic-Montag: That’s for sure. Well, thanks very much Ian. It was great being back.
Ian Hull: Thanks a lot, Suzana.
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