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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Rule 75.1 of the Rules of Civil Procedure provides for the mandatory mediation of estates, trusts, and substitute decisions matters which are commenced in Toronto, Ottawa, or the County of Essex.
Rule 75.1 provides that, except in a contested Passing of Accounts, the Applicant shall make a motion, in the same way as under R. 75.06 (Application or Motion for Directions), seeking directions for the conduct of the mediation. Rule 75.1.05(2) provides that the Notice of Motion for mediation directions is to be served within 30 days after the last day for serving a Notice of Appearance.
 

In terms of who actually conducts the mandatory mediation session, R. 75.1.06 provides that the mediator can be a person chosen from the list for the county by agreement of the designated parties, a person assigned from the list by the mediation co-ordinator for the county (at the request of a designated party), or a person who is not named on the list, if the designated parties consent.
 

Most clients are vaguely familiar with the court process and think they know what to expect - they know it involves a judge, their lawyer, a trial, and a courtroom. Not many clients however know what to expect at mediation. As a result, it is important for counsel to take time to describe the process, answer any questions, and prepare their client for what they can expect to happen at mediation. By doing so, counsel can help reduce their client's anxiety about the attendance.
 

Estate mediations can be a very emotionally draining experience. Apart from any legal foundation to the dispute, many intangible factors tend to also be present in estate matters. Jealously, anger, and greed are difficult emotions to overcome and can be sever stumbling blocks in settlement. Sometimes, steering clients away from the emotional aspects and towards the financial implications of continued litigation assists them in moving past those types of difficulties.
 

Clients need to be assured that the mediation process is completely confidential and that anything that is said or admitted cannot be used against them at a later date. The fact that there will be no public record of the proceeding may provide some clients with the comfort to say things that might otherwise not be said. In addition, clients can be advised that any information they provide to the mediator to try to help him or her understand their position better can remain confidential, and that the mediator will not disclose any information unless expressly authorized by the client. Having the opportunity to participate in open and frank discussions may be the key to resolving outstanding issues, issues which might not otherwise be addressed in the litigation process.
 

In jurisdictions not governed by mandatory estate mediation, r. 75.06(2)(f.1) allows a judge hearing an Application or Motion for directions to direct that a mediation session be conducted nonetheless. Counsel may want to keep this provision in mind when otherwise seeking directions in respect of a matter which may, in whole or in part, benefit from a mediation session.
 

Ian Hull - Click here for more information on Ian Hull. 

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As anyone who has ever been a party to litigation (and every litigation lawyer) knows, the costs of any court proceeding is a looming threat that surrounds the entire process. The sanction of costs is meant to discourage frivolous and vexatious litigation that has no chance of success. It is also meant to temper the zeal of the litigating parties (even where there are very real issues to be tried) by making them think hard about the necessary steps and how they conduct themselves in the litigation.  

The court has broad discretion to award costs under section 131 of the Courts of Justice Act. The factors the court considers in exercising that discretion are found in Rule 57.01 of the Rules of Civil Procedure and include the result in the proceeding, any offer to settle made in writing, the principle of indemnity, the amount of costs that an unsuccessful party could reasonably expect to pay, the amount claimed and the amount recovered in the proceeding, the apportionment of liability, the complexity of the proceeding and the importance of the issues. 

Notably, the court will also consider, the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding, whether any step was improper, vexatious, unnecessary, taken through negligence, mistake or excessive caution, and a party's denial of or refusal to admit anything that should have been admitted.

Costs sanctions are just one of the many mechanisms built into the litigation process designed to encourage settlement. For example, matters commenced in the Toronto Estates Court are subject to mandatory mediation, which means that the parties must attend with counsel to enter into in good faith settlement negotiations assisted by a professional and neutral third party.

If mediation fails, a pre-trial provides the opportunity for court-assisted settlement whereby a judge will assist and encourage the parties to settle.

Certainly, it is always better to be a part of the resolution, which provides a measure of control over costs and other factors. A much more attractive option than the risk involved with having no control over the outcome. 

Food for thought for all the litigants out there.

Sharon Davis - Click here for more information on Sharon Davis. 

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Listen to Will Challenge Litigation - Part 3

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They discuss what happens during the Discovery process and explore what Mediation is and how it works. Will challenge proceedings can benefit greatly from facilitation during the litigation process.

To see the video version of this podcast, you can also download it from iTunes or watch it on YouTube on the Hull and Hull channel: http://www.youtube.com/HullandHullLLP

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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Mediation continues to be all the rage in Estate litigation in Toronto matters, and is increasingly common outside Toronto as well.  (For background on Mediation in general, see here.)

Mediation no doubt sounds very conciliatory and cooperative, and in an ideal world it might be.  However, estate litigation and the ideal world are not a commonly-encountered pair.  In the real world, mediation can be extremely stressful. It is not uncommon for mediations to drag on into the wee hours as the increasingly tired lawyers and parties draft away at minutes of settlement, always with the possibility that the deal may fall apart at anytime.

Some lawyers have begun to have lengthy pre-mediation meetings with clients to prepare them for mediation ahead of time so they are not taken by surprise by the stress and late nights that may occur. Even more intriguing is the possibility of mediating an estate matter before death - see our own website and a similar website in California.

However, no matter how stressful and difficult a mediation can be, it is still a far cry from the stress and ups and downs of trial – no doubt  a main reason so many mediations result in settlement.

Thanks for reading.

Sean Graham

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Whether voluntary or mandatory, mediation is now a common occurrence in estate and trust litigation. Much has been written and blogged on the subject. I therefore thought it worthwhile to comment on the changing nature of the plenary session from a practioner’s point of view. 

Traditionally, the plenary session brought the parties and their counsel together at the outset of the mediation so that the mediator could review the ground rules or “rules of engagement”, discuss the benefits of reaching a mediated settlement, and touch upon role of the mediator during the process. Counsel were then invited to present their client’s case usually adopting an adversarial stance and focusing on a “rights-based” approach to the mediation.  Next up were clients who, understandably, often became angry or confrontational.  

However, plenary sessions have largely changed. It is now widely recognized that allowing counsel and parties to make opening statements only inflames the situation and places the focus on what divides the parties rather than what unites them. Consequently, the mediation is off to a poor start and the mediator spends considerable energy unwinding the newly minted ill-will. 

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Listen to The Family Conference

This week on Hull on Estates, Natalia and Allan discuss the Family Conference.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estate blog.

 

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Mediation is a common occurrence in estate litigation. Mediation is also popular in other areas, including family law and even commercial litigation. When choosing a mediator, I look for the following characteristics:

• Knowledgeable (has to know the law)
• Experienced at mediating (too many “wannabes”)
• Litigation savvy (knows the true costs and challenges of litigation)
• Empathetic (a good, sympathetic listener is a must)
• Diligent (a mediator has to know the issues and subtleties)
• Firm (a mediator has to know when to read the “riot act”)
• Stamina (mediation is often a marathon)
• Adaptable (a mediator wears many hats)

If the other side suggests a mediator you’ve never heard of, ask around. What do your colleagues think and what is the mediator’s reputation like? To be honest, I’m never too quick to agree to a mediator suggested by opposing counsel if I don’t really know their style and reputation. Opposing counsel may have a comfort level with the mediator or know something you don’t that could work against your client. 

By keeping the above characteristics in mind and doing your homework, you and your client will likely have a better chance of satisfactorily settling the dispute.

Thanks for reading, Justin

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I was recently in the Brampton courthouse. I imagine that Brampton is one of the busiest courthouses in the Province. It serves the Regional Municipality of Peel, which includes Mississauga and Brampton. The courthouse is busy with both criminal and civil matters. While I was there, I heard requests over the loudspeaker for Polish, Punjabi, Vietnamese, Chinese, and Spanish interpreters.

For my part, I was scheduled to speak to a guardianship application, which was to be adjourned on terms. The problem I faced was securing a full day hearing date for the return of the application. My matter involves a widow, whose health is declining. She has been declared incapable of managing her property and making personal care decisions. The application was brought by the widow’s nieces (my clients) to be appointed co-guardians of property and personal care for their aunt. The application is hotly opposed by the attorney for property and personal care, who my clients believe was appointed under suspicious circumstances.

While the adjournment was granted, it was also crucial that I obtain a timely hearing date for the application. However, the presiding judge apologized and advised that the first available date was not until late September 2007. More than six months would pass before the application would be heard. Her Honour explained that the region was understaffed when it came to judicial resources and simply could not accommodate all matters despite their apparent urgency. Her Honour also indicated that criminal matters usually took precedence over civil matters, as the right of an accused to a fair hearing would be prejudiced by undue delay.

The bottom line is that parties intent on litigating, whether in the estate context or otherwise, should understand that institutional delay will often push their “day in court” well into the future. Justice delayed is justice denied. However, that is the reality that litigants face in today’s overburdened court system.

It is for this reason that many alternatives to litigation are frequently promoted. Mediation is a good example, as is binding arbitration in commercial litigation matters. A party should therefore carefully consider what options they have before necessarily assuming that a court hearing is their best course of action.

Enjoy!
Justin de Vries

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I recently attended a client meeting where the issue of mediation was hotly debated. My client expressed reluctance in participating in a process with a party that my client regarded as intransigent and obstinate. My client also thought that proposing mediation would suggest to the other side that our case was weak and we were looking for a way out. After persuading my client that mediation was at least worth considering, a more substantive debate arose as to when to mediate. This debate deserves some comment.

In many ways, mediation is all "the rage" and early mediation is especially championed in the estate setting. In general, society is reluctant to see family members fight over what is perceived as a windfall. The courts reflect and promote this view. My colleagues and I have all blogged on the merits of mediation and I won't repeat them here. But parties can mediate too early. Often parties attend mediation without knowing the full extent of the estate assets or merely having a vague idea. Liquid assets might be readily ascertainable, but have all the liquid assets been uncovered i.e. have proper inquiries been made? Assets such as art, vintage cars, or family antiques are harder to evaluate and may require a professional appraisal, all of which takes time.

Moreover, the parties have often not exchanged relevant documents before attending mediation, something which they would be required to do if mediation took place at a later stage. Exchanging relevant documents will help a party better understand the risks they face in pursuing litigation, the weakness of their case, and the strength of their opponent's case (and vice versa). Forewarned is forearmed.

Back to my client meeting where it was decided that it was too early to mediate. An allegation had been made that an estate trustee had stolen money from the estate. However, no one was quite sure how much was taken and whether the estate trustee acted alone or in concert with an investment advisor. Some sort of accounting was required, supported by back-up documentation before mediation could take place and ultimately be effective. A court order might even have to be obtained to get at the necessary information. Mediation would happen, but at the right time with the right information. It is imperative that a party know their case so that they know when to mediate and how best to settle.

Justin de Vries

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Listen to "Tips for Directing and Controlling Estate Litigation" 

Read the transcribed version of  "Tips for Directing and Controlling Estate Litigation

During Hull on Estates Episode #48, Craig Vander Zee and Bianca La Neve continue their discussion on tips for controlling and managing estate litigation, focusing on orders giving directions, oral discovery and mediation.

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During Hull on Estate and Succession Planning Episode 39, we continued our discussion on the Family Conference, focusing on the actions to be taken in regards to non-participating family members. We also discussed the importance of documentation and defined will challenges.

 

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During Hull on Estate and Succession Planning Episode 36, we discussed:

• dealing with different family issues in a global sense;
• the family cottage and/or "special properties";
• dealing with fairness issues;
• how to equalize the gifting of a cottage; and
• the grandchildren effect.

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During Hull on Estates Episode 36, we discussed:

• mandatory mediation;
• the types of matters that have mandatory mediation;
• how mediation works in general;
• what the general timelines are for proceeding to mediation; and
• considerations for selecting a mediator.
  

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In yesterday’s Blog, we learned that Mrs. Webster sought an order extending the six-month time limit within which she could file an election to make an equalization claim from her husband’s Estate. Today, I will consider the law and the court’s decision.

According to the court, while there was evidence to suggest that Mrs. Webster was content with her benefits under the Will during the life of Mr. Webster, the court nevertheless recognized that she was completely free to change her mind and seek an equalization payment within the prescribed time.

Section 2(8) of the Family Law Act provides that the court may, on a motion, extend the prescribed time if it is satisfied that: (1) there are apparent grounds for relief; (2) relief is unavailable because of delay that has been incurred in good faith; and (3) no person will suffer substantial prejudice by reason of the delay.
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Limitation provisions generally aim to strike the appropriate balance between an aggrieved party’s right to seek redress and a potential defendant’s right not to remain under the cloud of litigation indefinitely or to answer for a wrong where it has become difficult, if not impossible, to marshal the evidence.

The case of Webster v. Webster Estate , a recent decision of the Ontario Superior Court of Justice, attracted notoriety in the media, as the Webster family is well known in Montreal and the world of philanthropy. The case is interesting to read given the amount of money at stake and the family dynamics. The case also deals with limitation periods in the estate context. Today, I will discuss the facts. Tomorrow, I will discuss the law and the court’s decision.

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During Hull on Estate and Succession Planning Podcast #35, we discussed:

• Special needs beneficiaries;
• What the definition of a special needs beneficiary is;
• The use of trusts for special needs beneficiaries; and
• The proper planning for special needs beneficiaries and what happens to the assets and the trust when the special needs beneficiary dies.
  

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During Hull on Estates Podcast #35, we discussed the following:

• Competing beneficiaries who join forces to challenge a Will when they do not have identical interests;
• People that need to be served in a Will Challenge;
• How to decide if you need your own lawyer or if you should join forces with the same solicitor; and
• How to deal with the costs of the Will Challenge when dealing with several lawyers.
  

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During Hull on Estates Episode 32, we discussed the book by Jordan Atin, Barry Fish and Les Kotzer titled "The Family War: Winning the Inheritance Battle" including how to avoid inheritance battles, how to deal with them when they do occur and strategies to end them quickly and successfully.

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During Hull on Estate and Succession Planning Podcast #29 , we discussed the need for disclosure of all financial information during the family conference.