Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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When practicing in the area of estates, we often only think of death in its legal context. We consider the Deceased’s assets, beneficiaries and claims made against the estate. What is often glossed over, however, is the actual end-of-life of the person who left behind what is being fought over. I believe that it is important not to reduce death solely to its legal ramifications. Considering the emotional, personal and even spiritual aspects of death can help add context to your files and can even make you a more understanding lawyer. That is why this recent article in the Huffington Post really struck a chord with me.

The article details the Washington, D.C., Threshold Choir, which performs to the gravely ill or dying. The choir visits (by invitation only) hospices, hospitals and private homes to sing mostly original songs designed to be therapeutic to their listeners. Two or three choir members will visit a bedside and perform songs based on the patient or patient’s family’s requests. The singers typically sing two or three songs to gauge a person’s response. Many times, the patient is too ill to speak and will signal their pleasure with the movement of a finger or a blink of the eyes. The songs are typically not religious and are meant for persons who are spiritual but don’t subscribe to any one faith. Singers typically do not witness their audience’s last breath as they note that people mostly prefer to pass on alone or in the presence of family.

While this concept may seem to be unique, there are apparently dozens of these groups in existence across the United States. This concept is also not unique to North American society; in some Buddhist and Hindu cultures, hymns are sung to the dying while mantras are chanted to them as the moment of death approaches. The article also states that during the Middle Ages, Benedictine monks were well-known for their infirmaries for the terminally ill that incorporated Gregorian chants to soothe the dying. There is even an emerging science, known as thanatology, which is studying the effects that sound’s frequency and tone can have on a dying person, such as changes in breath, heart rate, soundness of sleep and stress-reduction.

The director of the Threshold Choir not only trains her singers’ voices, she urges them to consider bigger questions about the end of life: “What role does this song play in transitions? What do they want to hear in their last week alive?” She states her goal as being “to steer their minds toward thinking about the death that will soon surround them, and to weed out the uncomfortable.”

Bringing it back to the practice of law, estates practitioners mostly gloss over the uncomfortable instead of weeding it out when it comes to death. I believe that thinking about death in its human terms in addition to its legal consequences will inevitably serve to improve your relationships with clients and help you to become a more compassionate person and lawyer.

Thanks for reading and have a good week.

Ian M. Hull

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No one wants to be embroiled in a family fight. No one wants their parents to disinherit them. No one want to fight with their siblings. Yet, as Estate litigators, we know that even those with the best expectations and planning are not immune to estate litigation. Unfortunately, rapper Nate Dogg’s Estate recently discovered this reality, AGAIN.

Nate Dogg passed away in March 2011. Having died intestate at the age of 41, litigation has surrounded the Estate in California Courts since shortly after his death, including who was going to act as Estate administrator. Although the litigation relating to the administration of the Estate appears to have been resolved, a quick google search of his name will return many hits related to his potentially modest estate being the subject of various claims.

In addition to those claims that were commenced shortly after the rapper’s death, it has been recently reported (as can be found here) that a woman has made a claim against his Estate for unpaid child support in the amount of just under $340,000.  The allegations are that Nathaniel Dwayne Hale (aka Nate Dogg) was supposed to pay Ms. Shereda Williams child support in the amount of $4,358 per month for a child reported to have been born in 2006. It is alleged that the Estate owes Ms. Williams the balance of unpaid child support obligations as well as any payments which would have accumulated since Nate Dogg’s death. 

Many details of Ms. Williams’ particular claim remain unclear.  Yet, there appear to be several very easy lessons to learn from Nate Dogg’s untimely death, notably, engage in some estate planning and be aware of your financial obligations before and after death. Wherever situate your Estate, I think these two principles are universally applicable as good practice.

Thanks for reading,

Nadia M. Harasymowycz

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The sensational story of Brenda Heist has been getting a substantial amount of news coverage recently. According to reports, the woman and mother had been missing for 11 years and was presumed dead. That is until she turned herself into police on April 26^th. It has been reported that she told police that after dropping her son and daughter off at school, she made the impulsive decision in 2002 to join a group of homeless hitchhikers heading for Florida. Heist and her husband were going through an amicable divorce but she was very upset at being denied housing support. When crying over this unfortunate turn of events in a park, she was approached by the hitchhikers and decided to join. After a substantial investigation, Heist’s husband went to court and had her declared dead in order to properly administer her estate.

In Ontario, in order to have someone declared legally dead in absentia, an “interested person” may make an application to the Court pursuant to the Declarations of Death Act (the “Act”). An “interested person” is defined in the act as “any person who is or would be affected by an order declaring that an individual is dead.” The Act goes on to list specific “interested persons” who may qualify. These include spouses, next of kin, attorneys for personal care and property, executors and estate trustees.

Pursuant to the Act, The Court may make an order declaring that an individual has died if the Court is satisfied that the person has disappeared in “circumstances of peril” or has been absent for at least seven years. In order to obtain a declaration of death, the “interested person” must show the following:

a)    he or she has not heard of or from the person since their disappearance in circumstances of peril or within the 7-year period;

b)    to his or her knowledge, after making reasonable inquiries, no other person has heard from the individual;

c)    there is no reason to believe that the person is alive; and

d)    there is sufficient evidence to find that the person is dead.

As you can see, obtaining a declaration of death may be difficult depending on the circumstances. It can, however, become necessary in order to have a missing person’s estate properly administered for the benefit of those left behind.

Thanks for reading and have a good week.

Ian M. Hull

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A recent New York Times article tells the story of Roman Blum, a holocaust survivor who died last year at the age of 97. Mr. Blum left behind an estate with an approximate value of $40 million. The problem is, however, that Mr. Blum apparently died without ever having made a will and he apparently has no living relatives who would be entitled to benefit from his estate. The public administrator in charge of Mr. Blum’s estate is using some of the money to hire a genealogist to search for any heirs that may still be alive. If that search proves fruitless, Mr. Blum’s substantial estate will pass to the state of New York.

In Ontario, what happens to an estate when there is no will (legally known as “intestate succession”) is governed by Part II of the Succession Law Reform Act (the “Act”). The Act dictates as follows:

1. If there is spouse and no children the spouse takes all.
2. If there is a spouse and children, the spouse gets the first $200,000.00. 
3. If there is one child, the residue goes to the spouse and the child equally.
4. If there is more than one child, the spouse gets one-third of the residue and the children share the other two-thirds equally.
5. If there is no spouse, the estate goes to the children equally.
6. If there are no children, the estate goes to the deceased’s parents equally.
7. If there are no parents, the estate goes to the deceased’s siblings; if a sibling pre-deceased, that sibling’s share goes to the deceased sibling’s children.
8. If there are no siblings, the estate goes to the nephews and nieces.
9. If there are no nephews and nieces it goes to the next of kin of equal degree of “consanguinity”. The Act states that the next of kin shall be ascertained by “counting upward from the deceased to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.”
10. If there is no next of kin, the estate "escheats" to the Crown.

As you can see, it would be an extremely rare scenario for an Ontario estate to pass, or “escheat”, to the Crown. Property that does end up being passed to the Crown is then governed by the Escheats Act.

Mr. Blum likely left behind people or charities that he cared about and wished to benefit. Without a will, however, these wishes will never be known or carried out. Also, depending on the results of the genealogical search, a distant relative who was possibly never known to Mr. Blum may end up receiving his estate. This story is a sad reminder of the importance of making a will (even if you don’t have $40 million).

Thanks for reading.

Ian M. Hull

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A recent article in the Globe and Mail takes another look at the right-to-die debate after the death of social activist Ruth Goodman, who passed away February 2, 2013, by her own hand. 

Ms. Goodman left a note that reads:

“People are allowed to choose the right time to terminate their animals’ lives and to be with them and provide assistance and comfort, right to the end. Surely, the least we can do is allow people the same right to choose how and when to end their lives..”

At 91, she was suffering from a number of complications due to Crohn’s disease and a series of strokes. By the end she could barely walk or read and complained of being in pain throughout her body.  Ms. Goodman advocated for a change in the law so that everyone will be able to make the choice of when and how to die. 

Ms. Goodman’s goal may be pushed forward next week. The federal government is challenging last year’s ruling by the B.C. Supreme Court that the law prohibiting assisted suicide, in specific and circumscribed conditions, is unconstitutional. The government says that legalizing doctor-assisted suicide would demean the value of life and could result in vulnerable people taking drastic steps in a moment of weakness. 

The B.C. case was launched by Gloria Taylor, an ALS patient who won an exemption from the law. Ms. Taylor died earlier this month, without assisted suicide. 

The debate is likely to end up in the Supreme Court of Canada, which last reviewed the country’s assisted-suicide laws in 1993 in the case involving Sue Rodriguez. 

Thanks for reading,

Moira Visoiu

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With the growing population of older Canadians we also face increasing numbers of people with dementia, and with that families who are likely anxious of the risks of their loved ones going missing. I can appreciate how scary this must be, and given the statistics – three out of five people suffering from dementia go missing – it is no wonder that the Alzheimer Society of Ontario is taking action.

The Alzheimer Society of Ontario reportedly unveiled a new government-funded education program this week aimed at preventing wandering. The new project called “Finding Your Way” features a website - www.FindingYourWayOntario.ca – with downloadable “safety kits” that include instructions on how to prevent wandering and how to respond when someone goes missing.

Importantly, the Alzheimer Society of Ontario is also extending help to ethnic minorities who may otherwise not access relevant information due to language barriers, by launching public service announcements and online information in several languages.

Thanks for reading and have a great weekend,

Natalia Angelini

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In a Hull & Hull podcast, Natalia Angelini and Stuart Clark discuss the Long-Term Care Homes Act and the Residents’ Bill of Rights.  But, are these legislative measures effectively protecting residents in long-term care facilities? 

Through an access to information request, a W5 investigation uncovered that there are 10,000 reported incidents of violence by residents against other residents in long-term care homes in Canada each year.   Under the Long-Term Care Homes Act, the Ministry of Health has the power to take over a facility’s management and to shut it down.  However, W5 found that neither of these penalties have been used.  In cases of resident-on-resident abuse, the most that has been done is to require that the home submit a plan with respect to how they would cease violating the Act. 

For residents such as Frank Piccolo, this offers little protection.  The Toronto Star reported that as Mr. Piccolo, who suffers from Parkinson’s and dementia, sat in his wheelchair, another resident with dementia entered his room twice in one night and attacked him.  The Ministry of Health and Long-Term Care report of the incident states that the staff knew for weeks that the woman who attacked Mr. Piccolo had previously attacked other residents, but they failed to supervise her.  Mr. Piccolo was unable to protect himself as his attacker hit him repeatedly over the face and head with a wooden activity board.  The Toronto police were called, but despite evidence of assault, they did not lay charges against the woman or the facility. 

Under the Long-Term Care Homes Act, the home has a duty to provide residents with a safe environment.  An investigator at the Ministry of Health and Long-Term Care found that the home had violated the Act and had failed in its duty to protect Mr. Piccolo.  After the attack, the home was required to provide a report as to how it would comply with the Act.  They installed video surveillance in the unit where Mr. Piccolo lived.   Should more be done to protect residents from other residents in long-term care homes?

Holly LeValliant

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The Ontario Bar Association is launching a PR campaign today to persuade the public that lawyers are valuable problem-solvers and indispensable to the community. 

The campaign will include social media (lawyers speaking about their profession), together with print and radio advertising.

The Globe & Mail reports: "The Ontario campaign comes at a time when many lawyers and judges have raised soul-searching questions about access to the courts and the high costs of litigation. Bar associations in other provinces are watching closely with a view to launching similar campaigns, said OBA president Morris Chochla"....The theme of the OBA campaign is focused on what inspired individual lawyers to attend law school. Members will be encouraged to share their own testimonials on a website and to incorporate their narratives into Facebook accounts and firm websites."

David Morgan Smith

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Ian Hull and I recently blogged about informed consent in the context of Ontario's Health Care Consent Act 1996.  As discussed in that blog, contrary to widespread belief, there is no age of consent in Ontario.   Instead, the principles of capacity (to consent to treatment) are applied, as per s. 4 (1) of the Act, i.e. does the person understand the information that is salient to the decision, and do they appreciate the reasonably foreseeable consequences of a decision or a lack of decision.  In short, the concept of maturity is used as the yardstick, rather than chronological age.  As a parent, this concept has intrigued me, so I decided to explore this issue further.  In doing so, I discovered the journey of a captivating boy named Abraham Cherrix.

In 2005, at the age of 15, Abraham Cherrix was diagnosed with Hodgkin lymphoma.   At the time of his diagnosis, Abraham was living with his parents and four younger siblings in rural Virginia.  His first round of chemotherapy, as recommended by the doctors at the Children’s Hospital of the King’s Daughters, rendered him feverish, nauseated and so weakened that Abraham’s father had to carry him from the car into the house.  When doctors raised the subject of a second cycle of chemotherapy, at higher doses and to be supplemented with radiation, Abraham declined, and his parents echoed his refusal.  In lieu of conventional chemo, Abraham and his parents wanted to pursue an alternative herbal treatment (which they had prospected on the internet) called the Hoxsey Method.   Having been banned by the U.S. FDA 45 years earlier, and having been deemed by the American Medical Association to be quackery, the Cherrix family sought treatment with the Hoxsey Method at the Bio-Medical Center in Tijuana, Mexico.

By the summer of 2006, the Accomack County Department of Social Services had determined that Abraham was not receiving ‘appropriate life-saving care’.   Abraham’s parents were charged with medical neglect and officials took joint custody over the teen and ordered him to report to the hospital for chemotherapy treatment.    A last-minute stay was obtained by the family and they regained full custody of their son.   A month later, Abraham’s parents were cleared of the charges of medical neglect, and a consent decree was reached under which Abraham was permitted to pursue the Hoxsey Method as long as he was appropriately monitored by a board-certified oncologist, and by the court, until he turned 18.

Abraham’s case sparked a nationwide controversy.  No one questioned that Abraham’s disease was both serious and life-threatening.  The flame to the kindling: statistics showed that the success rate in curing Hodgkin lymphoma after three rounds of chemo was nearly 90 percent.   The key issue that arose from Abraham’s refusal to subject himself to a second round of chemotherapy was this: When is a minor able to make autonomous decisions about his or her own health care; to consent, or refuse to consent to health care treatment on their own behalf?  Like most states, the age of majority in Virginia is 18.  However, in response to the difficulties faced by the Cherrix family in their wish to pursue an alternative treatment,  the Virginia legislature passed a bill on February 23, 2007 called "Abraham's Law".  This law would allow minors older than 14 to refuse life-prolonging treatments with the agreement of their parents on the condition that such a decision (to refuse medical treatment) is made in good faith and in the child's best interests.

Abraham is 22 years old now and living in the small town of Floyd, in the Blue Ridge Mountains of Virginia.  In January, he learned that the cancer had returned to his left lung.

Jennifer Hartman, guest blogger

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I am obsessed with mastering Parchesi (great board game that I highly recommend to those of you who still play!).  I play weekly, and I can't even fathom risking something more than my next move on a roll of the dice, which is why the real-life story of a man who thought up having his nieces and nephews play Monopoly, with the winner getting his fine antique furniture, threw me for a loop. Another gentleman reportedly directed in his will that the winner between his nephews in a dice throw would get his palatial home in the tropics.  One lucky nephew won, and the will was upheld in court.

These testators' wishes represent comical (at least for the winners) and extreme scenarios. Below I highlight some of the more common methods of gifting (usually of personal property) the author in the article mentions:

1 - Say nothing, and your executor will distribute in accordance with his/her discretion;

2 - Write your list of items and who they go to in your will or in an appendix thereto;

3 - Implement a rotating pick system (eg. Each beneficiary gets a number and picks when it is his/her turn until all items have been selected); and

4 - Direct the beneficiaries to get together and agree on who gets what, with the executor having the final say.

Thanks for reading and have a great weekend!

Natalia Angelini

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Superman is an icon of comic books, movies and television.  He is the quintessential superhero.  He represents the pinnacle of human potential.  Strong, fast, noble, honest, heroic and virtuous, Superman stands for the very best that we can be despite his humble beginnings.  He was orphaned as an infant when his home planet of Krypton was destroyed.  He immigrated to earth, and was raised by the Kents, a farming couple in Kansas. 

Like the character, his creators, Jerry Siegel and Toronto-born Joe Shuster, came from humble beginnings as well.  Shuster worked as a paperboy to help make ends meet for his family during the 1920s.  Siegel was the youngest of six children, whose father died when he was a child.  Both were born to immigrant families of limited means and faced all of the challenges associated with growing up under those conditions.  Somehow, despite the odds, they succeeded in creating one of the most successful literary characters of all time. 

Tragically, Siegel and Shuster were never well rewarded for their success.  In 1937, they sold 13 pages of Superman work to what is now DC Comics for $130, and signed a release granting DC the rights to the character.  A 1940 lawsuit prompted Siegel and Shuster to drop their claims to Superman in exchange for $94,000.  Litigation was renewed in the 1970s, resulting in Shuster and Siegel agreeing to accept annual payments of $20,000 in exchange for the rights. 

Joe Shuster passed away in 1992.  Jerry Siegel died in 1996. 

After Jerry's death, his widow, Joanne Siegel, began proceedings on behalf of his estate to have the transfer of copyright to DC terminated under provisions of the US Copyright Act of 1976.  At trial, the estate was granted some rights in the Man of Steel.  However, this was overturned recently by the US Court of Appeals for the Ninth Circuit, which upheld a 2001 agreement between the estate and DC, now part of Time Warner.   

A separate 2012 proceeding on behalf of Shuster's estate also ended in favour of Time Warner.

The result is that DC/Time Warner now appears to have exclusive control over Clark Kent and his secret identity, although it is still open to Siegel's estate or Shuster's estate to appeal to the Supreme Court. 

Assets like copyrights are often forgotten by will drafters, estate planners and testators when preparing their estate plans.  Although largely unsuccessful, the efforts of the representatives of the estates of Shuster and Siegel to enforce their intellectual property should serve as a reminder that these assets can be quite valuable.  Time Warner is set to capitalize on the value of Superman this year when it releases "Man of Steel" in movie theatres this summer. 

Most individuals will create something in which they will have copyright during their lives.  Things like photographs, paintings, poems, songs, recordings and academic writings come with copyrights.  Although most of these rights will never become valuable, it may be worthwhile for an estate trustee gathering in assets to consider these, and for will drafters to deal with these rights, so as not to leave their beneficiaries vulnerable to the Lex Luthors of this world who might seek to take advantage. 

Suzana Popovic-Montag

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I recently read an article in the Toronto Star raising the issue of end of life decisions, and how best to prepare for those times, particularly, how to ensure that when making end of life decisions, the wishes of the person who is ill are given effect. The article stems from the author’s personal circumstances wherein his father was sadly suffering from Alzheimer’s and unable to convey his wishes.  The author makes mention of the current case before the Supreme Court of Canada that considers end of life decisions, and who ultimately has that choice, which Susana Popovic-Montag blogged about recently. 

It is proposed in the article that more responsibility should lay with care givers to address the end of life desires of patients and that the legal profession should take more active steps to explain the concept of a power of attorney. The author of this article also hits on the point that even the most direct and clear medical diagnosis may not resonate with those emotionally involved in making end of life decisions.  

For those who do not deal with death and related issues on a daily basis, the idea of contemplating end of life decisions is uncomfortable (to say the least). It makes sense, thinking of your own demise isn’t pleasant; even more unpleasant is thinking of all the painful ways death can occur and then trying to guard against that. Even if in theory you know what you want, or what you think you want, it can be difficult to reduce those wishes to paper. More likely, you don’t think it will be necessary, and hope that you are never in a position where you are suffering and can’t make decisions on your own. 

I agree with the author of this article, in that anytime a family is faced with making end of life decisions on behalf of a loved one, it is emotional and difficult. I also agree that taking steps to put your wishes on paper, or appointing someone to deal with those decisions when you can’t is important. Sadly, you can’t force people to deal with the uncomfortable and make choices they aren’t prepared to make, regardless of how reasonable you make it seem. Further, as we have learned from the current case before the Supreme Court of Canada, even where wishes of the family are clearly expressed, appropriate end of life decisions are not always clear.  Only time will tell whether clarity will be had across the country after the Supreme Court renders its decision.

Ultimately, end of life decisions are personal and always difficult. Powers of Attorney can be very helpful in guiding your family in the direction you wanted, if and when necessary, but the ultimate decision doesn’t get any easier to make. Perhaps the only thing that can give comfort to those who have to make the decision is having talked about it before hand and knowing your wishes.  

Something to think about,

Nadia M. Harasymowycz

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If a piece of art worth $65 million cannot be legally possessed, sold or purchased, is it still worth $65 million? This was the dispute that played out between the I.R.S. and the beneficiaries of the estate of Ileana Sonnabend related to a piece of art by Robert Rauschenberg entitled “Canyon” held by the Estate.

Upon Ms. Sonnabend’s death in 2007, this deceased New York art dealer possessed an art collection worth roughly $1 billion, including paintings by Jasper Johns and Andy Warhol. The lawyer for the beneficiaries, Ralph Lerner, told the New York Times that the beneficiaries have already sold off a significant portion of the art collection to pay approximately $471 million in federal and state estate taxes.

But the beneficiaries drew their line in the sand when it came to valuing and paying tax on the sculpture combine entitled “Canyon“. You see, this particular piece of art was affixed to a stuffed bald eagle. However, in accordance with the 1940 Bald and Golden Eagle Protection Act and the 1918 Migratory Bird Treaty Act, it is illegal to possess, sell, purchase, barter, transport, import or export any bald eagle, either dead or alive. As set out in a notarized statement by the artist himself, this particular eagle had been killed and stuffed by one of Teddy Roosevelt’s Rough Riders prior to the 1940 law coming into effect. Nonetheless, possession of the Canyon remained contrary to the 1940 Act. It appears that Mrs. Sonnabend was allowed to keep the sculpture as a result of informal approval in 1981 from the United States Fish and Wildlife Service. In 1998, Mrs. Sonnabend’s ownership of the sculpture was allowed to continue so long as the sculpture was displayed at a public museum (resulting in the sculpture being on long-term loan to the Metropolitan Museum of Modern Art in New York).

Following her death, Mrs. Sonnabend’s beneficiaries reported that the Canyon sculpture had a value of $0. If the sculpture could not be legally bought or sold, they determined that the fair market value of the Canyon must be nil. However, the I.R.S. disagreed, attributing a value of $65 million to the Canyon, and sought approximately $29.2 million dollars in estate taxes, interest and penalties. As it turns out, the Art Advisory Panel, which advises the I.R.S.’s Art Appraisal Services unit, elected not to consider the restrictions on the sale of the Canyon and only considered its artistic value.

It is not unusual for the I.R.S. to attempt to tax transactions in contraband at their market value. Al Capone went to jail for not paying tax on his illegal income. But the circumstances related to the Canyon are somewhat different. The Canyon has not been sold. There is no black market transaction to tax. The I.R.S. was relying upon an assumption that the beneficiaries were willing to enter into an illegal transaction in order to determine its fair market value of $65 million.

In the end, the parties settled their dispute. The I.R.S. agreed to absolve the beneficiaries of any tax liability, if the Canyon was donated to any museum open to the public. On November 27, 2012, the director of the Museum of Modern Art in New York announced the receipt of the gift by the family of Mrs. Sonnabend.

But the settlement begs another question – if the beneficiaries placed the value of the Canyon at $0, can they still get the charitable tax deduction?

Have a great weekend.

Jonathon Kappy

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 The Supreme Court of Canada is currently being asked to consider releasing a secret intelligence dossier on former NDP leader Tommy Douglas. Douglas, known to many as the father of Canadian Medicare, was a staunch democratic socialist whose left-leaning political views appeared to concern the country’s intelligence agency so much so that they spied on him “from the late 1930s to shortly before his death in 1986,” according to according to a recent article detailing the affair. Over those decades, agents of the RCMP Security Service, the predecessor of the Canadian Security Intelligence Service (“CSIS”), “attended his speeches and protests, analysed his writings, infiltrated private meetings at which he spoke, and eavesdropped on private conversations.”

The battle began in 2005, when Jim Bronskill, a Canadian Press reporter, commenced an application under the Access to Information Act (the “Act”) to have the trove of documents released to the public. Although several hundred pages of the dossier were released as a result of the application, the federal information commissioner sided with the government to leave the bulk of the file under wraps. Bronskill then launched a court challenge that resulted in the Federal Court decision of the Hounourable Mr. Justice Simon Noël. In finding that the bulk of the documents should be released, Justice Noël noted the “importance of transferring information to the public domain for the benefit of present and future Canadians, as well as our collective knowledge and memory as a country.” The government immediately appealed to the Federal Court of Appeal and successfully had the decision overturned. Bronskill is now seeking leave to appeal to the Supreme Court for a final ruling on the issue.

If the matter is granted leave, the Supreme Court will have to weigh the public’s right to see the documents against national security concerns. Although the documents are decades old, CSIS is worried that they “would reveal secrets of the spy trade, which could jeopardize the lives of confidential informants and compromise the agency's ability to conduct secret surveillance,” according to the aforementioned article.

At the crux of the matter is consideration of Section 15 of the Act, which grants the head of a government institution the right to refuse disclosure on the basis that it could “be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities[.]” While it is difficult to understand how these documents could affect national security given their age and subject matter, the irony is that without access to them, we can’t know for sure.

Thanks for reading.

Ian M. Hull

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The Municipal Conflict of Interest Act (“MCIA”)– the Ontario law that resulted in the removal of Toronto Mayor Rob Ford from office – has received a great deal of attention in the media recently. The MCIA was called "a very blunt instrument that's attracted justified criticism" by the very judge who presided over Ford's case. This led me to review the legislation, which was surprisingly short in length, and the Court decision which started it all.

The MCIA provides that where a member has any pecuniary interest, whether direct or indirect, in any matter and is present at a meeting of the council at which that matter is the subject of consideration, the member:

(a)        Shall disclose the interest;

(b)        Shall not take part in the discussion and shall not vote on any question in respect of the matter; and

(c)        Shall not attempt in any way to influence the voting on any such question.

If, on an application before the Court, the judge determines that a member has contravened the MCIA, section 10 of the MCIA provides that the judge:

(a) shall, in the case of a member, declare the seat of the member vacant; [emphasis added] and

(b) may disqualify the member or former member from being a member during a period thereafter of not more than seven years; and

(c) may, where the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, where such party is not readily ascertainable, to the municipality or local board of which he or she is a member or former member.

Section 10 of the MCIA also includes a saving provision which provides that a judge does not have to declare the member’s seat vacant if the contravention was committed through “inadvertence or by reason of an error in judgment.”

Ford’s lawyers defended the application on a number of different grounds. While each ground garnered interesting analysis by the Court in its decision, I was particularly interested in the concept of an “error in judgment” – a vague phrase that leaves the door open for a broad range of interpretations. 

Ford argued that his “error in judgment” was that he had an honest belief that he was entitled to speak and vote on the issues before Council.

The Court responded that his actions were “indeed an error in judgment in the broad sense that all contraventions of the law can be viewed as errors in judgment. However, the case law has necessarily given the concept of an error in judgment a much more restricted meaning.”

The case law requires that the error in judgment referred to in the MCIA must have occurred honestly and in good faith. Cases where the error in judgment saving provision was successfully relied on involved reasonable mistakes of fact made about whether the issue actually engaged the member’s pecuniary interests or cases of novice elected officials who relied on erroneous legal advice.

By contrast, the Court considered Ford’s long service on Council and the fact that he admitted to not having read or familiarized himself with the MCIA. Ford had also failed to seek legal advice on the matter and had failed to attend briefing sessions on the MCIA for newly elected councillors, or to read the councillor’s handbook which addresses conflicts of interest.

The Court concluded that “the respondent’s actions were characterized by ignorance of the law and a lack of diligence in securing professional advice, amounting to wilful blindness. As such, I find his actions are incompatible with an error in judgment.” 

Thanks for reading,

Moira Visoiu - Click here for more information on Moira Visoiu. 

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A representative of William Faulkner’s estate is suing representatives of Woody Allen’s movie project, “Midnight in Paris” over its use of a quote from Mr. Faulkner.

The line, “The past is never dead. It’s not even past”, is taken from Faulkner’s 1950 novel “Requiem for a Nun”. In the movie “Midnight in Paris”, time-travelling Owen Wilson says “The past is not dead. Actually, it’s not even past.”

Faulkner’s estate is suing for copyright infringement, and is seeking damages, disgorgement of profits, costs and attorney fees. The defendants are defending the claim, relying on the “fair use” defence. Consistent with the “fair use” claim, it is noted in the article that President Obama paraphrased the quote in a speech during his 2008 campaign.

Faulkner’s executor, Lee Caplin, is quoted as saying that the suit is being brought in order to look out for the fiduciary responsibilities of the Faulkner estate.

We have blogged before on various estates involving literary works. In most cases, the estate trustee(s) will go to great lengths in order to ensure that there is an appropriate financial return on the literary works, while also ensuring that the works are not devalued or cheapened. 

(Paranthetically, I note that Woody Allen did not chose to quote Faulkner’s Guiness Book of World Records record-setting 1,288 word “Longest Sentence in Literature” found in “Absalom, Absalom”, published in 1936.)

“Thank you for reading.”*

Paul Trudelle - Click here for more information on Paul Trudelle. 

*may be subject to copyright

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A crowd of people have gathered. They look sad and many are crying. They are all ignoring you. They are all wearing black. You see the casket at the front of the room, and hear the priest begin to speak a few words about the Deceased. It is only then that you realize that you have stumbled upon your own funeral. 

You sit up with a start in a cold sweat. Your first thought is – “Thank God. It was just a dream”.  What if it wasn’t? 

Only a few weeks ago, a man in Sao Paulo, Brazil, shocked his family when he interrupted a funeral being held for HIM in his mother’s home. This was largely the case of mistaken identity. Two men who resembled one another and both worked as car washers were confused when one of the men had been shot dead, as reported in the Huffington Post. That doesn’t change the fact that this played out much like a movie. People fainted and others ran away. Ultimately, the family was relieved. 

This story seems almost unbelievable, but can’t be viewed as impossible.  In Ontario, we have a piece of legislation titled the Declarations of Death Act, 2002, S.O. 2002, Ch. 14., which allows for the Court to declare an individual dead in certain circumstances, notably where the person has disappeared in circumstances of peril or where a person has been missing for more than seven years. While this doesn’t cover mistaken identity, it could, in theory, result in a person being found alive after a declaration of death, and hypothetically they could walk into their own funeral. A quick reading of the case law that has dealt with this legislation will show that the Courts render a declaration only where it is felt that the evidence is overwhelming. We are unlikely to have any situations as in Brazil happening here anytime soon. Although…mistaken identity remains a possibility here too. In my view, any sort of rising of the ‘undead’ is most likely to occur in popular fiction.

Thanks for Reading,

Nadia M. Harasymowycz

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A report released yesterday by the Trillium Gift of Life Network, found that people who are 50 and older are least likely to register as organ donors, though they are most likely to be in need of organ transplants.

The report found that that only 39 per cent of the 2.5 million registered organ donors in Ontario are 50 and over.  However, nearly two-thirds of people on the waiting list for organ donations in Ontario are 50 and over.

Similar to donor registration rates, the report also found that the older people are, the less likely they are to consent to donating a deceased loved one’s organs.  According to the report, the consent rate for donating a loved one’s organs is 52 per cent for people age 50 and older, while it is 70 per cent for people younger than 50.

The report found that families approached to consider organ donation almost always consented when they were given evidence of their loved ones' registration, while those who declined usually stated it is because they are not sure what their loved one would have wanted.

As we have blogged before, in Ontario, testamentary instructions or stated wishes regarding organ donation (technically) have no legal effect, and depend upon next of kin or the executor for implementation. Therefore, discussing your views on organ donation with your family and your named executor, leaving a Will with specific directions about organ donation, signing your Gift of Life Donor Card, and registering your consent with ServiceOntario are important to ensure that your wishes for organ donation are known and respected after your death. 

Thanks for reading.  Have a great weekend!

Saman Jaffery

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A client (or friend, or my mother: I can’t quite remember who) once referred to her children as “waiters”, as in “They’re waiting for me to die”.

To this point, a recent article on the Globe and Mail online by Rob Carrick warns against children relying on an inheritance to bail them out.

The article refers to an oft-quoted report from 2006 that suggested that $1-trillion ($1,000,000,000,000) will be inherited in the next twenty years. The article suggests that this number might be less today, due to increased debt-load, falling property values, weak investment returns and longer lifespans. However, whatever the number may be today, it is still a significant one.

The article cautions children from relying on these numbers and a potential inheritance to bail them out of trouble. Carrick says “As for people counting on an inheritance, that’s only one step away, in financial planning terms, from waiting for a lottery win.”

As ill-advised as it may be, 53 per cent of Canadians are expecting an inheritance, and 57% of those who think they know what they are getting expect it to be in the six-figure range.

However, those expecting a big inheritance may be disappointed. Second (or third, or fourth…) relationships may eat into their inheritance. Further, seniors are living longer, and the costs of senior care can take up a large portion of a senior’s savings. Coupled with this is the fact that government pensions may not be able to provide significant assistance.

The message seems to be to live within your means, and plan for your own future needs and well-being. Don’t spend your inheritance before it comes in.

Have a great long weekend.

Paul Trudelle

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Life is full of moments of joy and sadness, accomplishments and failures, effort and relaxation. From each moment we learn something. Our character evolves based on the experiences we have. It’s unavoidable. As a result, the things we want in life also change dramatically over time. While reflected in our testamentary intentions, this is epitomized in our daily actions. 

One of my favourite movies (Pretty Woman) has a scene that lasts a total of about 11 seconds, but the question posed several times throughout has resonated with me for years - “What’s your dream?”. I hear people talk about their ambitions, and the opening scene of Pretty Woman flashes in my head. So much so, that when a colleague sent me this link about an art project, the film strip started playing in my mind.

As the movie alludes, we all have dreams and goals. When we reach them, or realize we can’t, we set new ones. Part of the beauty of the human experience is that we all have different dreams, we all bring a unique perspective to what it means to live. As part of the ‘Before I Die Project”, the brain child of New Orleans artist Candy Chang, if you take a walk to the corner of Queen Street and Dufferin Street in Toronto, you will see a recent art installation that allows Torontonians to share their dreams. Ms. Chang lost a loved one and began to think about death a great deal. The end result was that she wanted to know what was important to people.  She painted the side of a house in New Orleans with chalk board paint and stenciled the sentence “before I die…” repeatedly onto it, leaving chalk so that people could fill it in.  From the flippant to the serious, the sentences are demonstrative of the human experience. 

In a way, the challenge of finishing the sentence, whether by actually writing it in chalk on the wall, or merely contemplating it in your head, allows you to reflect on who you are, who you’ve become and who you want to be. I’ve spent some time reviewing the various project websites and the sentences can be as simple as ‘I want to live’, or funny “I want to become a jedi master’, or serious “I want to continue to be a decent human being”.  As an Estate Litigator, the most poignant to me was this sentence from the Glasgow, Scotland project, “Before I Die… I want to say goodbye”. Too often in my work, I see families torn apart without having had the opportunity to deal with their loss. Perhaps, this international project will give us pause to reflect and consider our dreams, to pursue them, and share them. 

As is so simply stated in the 11 seconds of Pretty Woman, ‘Everybody has a dream. What’s your Dream?’

Thanks for reading - have a nice weekend,

Nadia M. Harasymowycz