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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A private member's bill that would decriminalize medical practitioners assisting with suicide is about to get its first reading in the House of Commons.  

Bill C-384 would amend sections 222 (homicide) and 241 (assisted-suicide) of the Criminal Code.  Currently, these provisions criminalize (or confirm the criminal liability of) medical practitioners who participate in patients' suicides by providing their services.   Bill C-384 would create an exception to criminal liability for medical practitioners if prescribed elements were met:  patients would have to be 18 years of age, suffer from a terminal illness or be in severe pain without prospect of relief (though a patient who refuses pain-killers still qualifies), provide 2 written consents to die "while appearing to be lucid" at least 10 days apart, and provide a written designation of another person to act on his or her behalf if he loses lucidity.

The phrase "while appearing to be lucid" rings alarm bells off their walls.  The test implies a very low capacity threshold by comparison to say, testamentary capacity, but does not deliberately fit anywhere identifiable on the capacity threshold scale.  From a estates law perspective, there is no requirement in the bill that medical practitioners consult personal care guardians or attorneys before going about their business.  There is no requirement for a guardian or attorney to even consider these issues, but such legal possibilities might dramatically complicate the duties and obligations of a guardian or attorney.     

From this quick analysis, this bill appears to have been written without input from the estates bar (which is unsurprising - it is the first reading of a private member's bill in a criminal law matter in federal jurisdiction).  This is a good example of how broad the estates/capacity field is and the potential effects of developments in other areas of law on estates/capacity law.

Have a great day, and enjoy every day you get,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

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In a recent news item out of Queensland, Australia, a 77-year-old man has failed in his attempt to regain control of his financial affairs. The elderly gentleman had apparently squandered part of his money on hundreds of calls to sex-chat lines. The Guardianship and Administration Tribunal of Queensland had made an order last year giving control of the elderly gentleman’s financial affairs to the Public Trustee. In November 2008, the Tribunal upheld its original order, leading the elderly gentleman to appeal the matter to the Supreme Court. Last week, the Supreme Court denied the appeal and agreed that the Tribunal retain control over the man’s financial affairs. 

Details of the hearing cannot be released due to a publication ban. One wonders whether the sex-chat calls were isolated incidents or part of a pattern of unusual behaviour that convinced the Tribunal (and the Supreme Court) that the elderly gentleman’s capacity to manage his own finances was impaired. It is also unclear whether the man had family and/or whether any of his family supported his fight to regain control of his money. 

I note that the Guardianship and Administration Tribunal of Queensland has similar duties and responsibilities to Ontario’s Office of the Public Guardian and Trustee of Ontario (OPGT) and the Consent and Capacity Board. The Tribunal of Queensland can determine whether or not a person has impaired decision-making capacity and, if necessary, make an order appointing a guardian and/or an administrator. In Ontario, it is the courts that primarily make determinations of incapacity. 

Thanks for reading,

Bianca La Neve

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In estate litigation it is not uncommon for one or more disputing parties to be under disability. Unless the court or a statute provide otherwise, a party under disability must be represented by a litigation guardian (see Rule 7 of the Rules of Civil Procedure, which regulates proceedings by or against parties under disability). 

Someone can act as the litigation guardian for a plaintiff (or applicant) by filing an affidavit with the court, the required contents of which are set out in Rule 7.

In the case of a defendant (or respondent) who is a minor, the Children’s Lawyer shall act as the litigation guardian, unless the court orders otherwise.

In contrast, in the case of a defendant who is an adult, aside for a few exceptions set out in the Rule, no one can act as a litigation guardian until appointed by the court. The evidence that must be filed in support of the motion for such appointment is also particularized in the Rule.

Some other noteworthy provisions in Rule 7 are:

·                    a litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee must be represented by a lawyer;

·                    a litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim;

·                    where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as litigation guardian; and

·                    no settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.

Have a great day,

Natalia Angelini

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Listen to Deductions from Compensation.

This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

Deductions from Compensation - Hull on Estate and Succession Planning Podcast #125

Posted on August 12, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #125 of our podcast on Tuesday, August 12^th, 2008.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, Ontario, Canada, here are Ian and Suzana.

Suzana Popovic-Montag: Hi there, Ian.

Ian Hull:  Hi, Suzana. How are you doing?

Suzana Popovic-Montag: I’m good thank you, how are you?

Ian Hull: Just great. We’re having some fun with this whole question of accounting, and I think I’ve done the numbers, and I think we’re almost done. But before we go through our podcast today, let’s remind everyone, please feel free to call in on our call-in number and our call-in number is of course, 206-457-1985.

Suzana Popovic-Montag: Or send us an e-mail at hullandhull@gmail.com or of course, you can visit our blog at estatelaw.hullandhull.com as well. 

Ian Hull: So before we launch into the substantive podcast today, I just wanted to do a couple of things. One, I want to deal with an e-mail that came in and another is I want to just welcome people to listen and look at the, last week we enjoyed Jordan Atin who is our associate counsel here, our Senior Associate Counsel, and he was on Canada AM for four days in a row talking about family feuds and the link to the webpage where CTV is still running the streaming is worth looking at, and we’ll make sure that’s in our show notes.  But Jordan had a great opportunity to talk about family feuds and sort of the issues that arise out of his book, “The Family War” which is co-written by Les Kotzer and of course, my good friend, Barry Fish.

Alright, so we were talking about some of the e-mails. And we had two e-mails last week come in. Both of them were semi-related and so I’m sort of going to merge the two of them together. And the question really comes down to this:  What are we talking about with The Shoebox Effect? And what we’ve been mentioning in the past and what we’re going to talk a little bit about today, because part of our wind-up is the importance of vouchers, is The Shoebox Effect is this. When you are a trustee, no matter what you think, no matter what you do, you will be someday possibly asked to show your receipts and that’s all I’m saying The Shoebox Effect is. Make sure you keep receipts, even if it’s in a shoebox. Your lawyer or your accountant can work on the presentation of it when you ultimately have to go to Court, but keep the receipts. So that was the two questions that came in, actually, both were from different parts of Canada but asking about the same question. So I’m not going to dwell on it other than that and say that when we’re winding up our comments on accounting, please, please, please keep your receipts if you’re a fiduciary.

Suzana Popovic-Montag: And just to add one thought to that, Ian, I would also suggest that it’s really helpful to make sure that you document as much as possible everything that you do as a trustee.  And when it comes to exercising your discretion, and if particularly the Will or the trust document allows you to have a broad discretion, to write down your thoughts or your reasoning or the underlying reasons that you decided to do something or not do something and include that in the shoebox that you end up bringing to a lawyer one day possibly.

Ian Hull: That’s a great suggestion and it comes down to, when we’re talking about getting paid for all of these efforts, the deductions from compensation that we briefly talked about in the last podcasts, what can you look to? So we talked about that you can get paid, say approximately 5% as a tariff, so to speak.  And we’ve talked about some of the things we’re going to knock you out from, but one of the easy deductions is the delineation between the executor’s work and lawyer’s work or accountant’s work. And that ties into your comment, Suzana, on docketing, keeping records beyond just the receipts that I talked about.

Suzana Popovic-Montag: And things for instance, like the preparation of tax returns, when fees are associated with that, depending on who’s preparing the tax returns and how much those fees are, that’s another thing that might possibly be a deduction from compensation if the trustee for instance is an accountant. And these are situations where a trustee is an accountant or a lawyer that you see most often, where these issues can arise.

Ian Hull: Alright, so another concern that we raise and probably the last deduction from compensation we’ll just mention now, is this whole idea of pre-taking compensation. Under Ontario legislation, if you’re a fiduciary or, as I say, a guardian under the Substitute Decisions Act, they actually allow you to pre-take your compensation, take before you’ve made your efforts. But we’ve talked about in the past the cases, and we’ve talked about them in the show notes as well, the case law that talks about Re: Knoch which we talked about in our previous podcast and others, and we want to be very, very careful about pre-taking, getting paid before you’ve done your work. So that’s an easy deduction.

Suzana Popovic-Montag: Ian, just a question that I find often gets asked is whether or not GST is actually payable on executor’s compensation. What are your thoughts about that?

Ian Hull: Well, that’s a great question and it’s a murky area of the law.  And what has happened in the past is you would typically have to look at it case by case. First and foremost, you have to look at the amount of the payment that the compensation is. If it is over $30,000 that you’re being paid in compensation, which could be the case because it’s typically a one-time payment, you may have to pay GST on that income as having rendered services. So it’s really case-by-case. Talk to your accountant, get good advice before you wrap up that issue, but that’s an excellent question and a really important heads-up for people who are accounting and doing compensation work.

Okay, I think we’ve pretty well covered off our accounting in the in-depth form and so we wanted to make sure that we stayed the course and came full circle to our sort of checklist that we’re trying to work through. And one of the things I will say is we’re hopefully going to be changing our format and trying to pick up a video feed for our podcasts which is in the process. Some technology glitches haven’t allowed for it to fall in just yet, but we’re going to be moving into some different topic areas. But one of the topic areas that we have to, I think, just sort of at least wrap up in a minimum way, is the process itself. We’ve talked about the passing of accounts process but let’s talk about the physical steps that are taken because many people don’t understand passing of accounts and what you can expect in the courtroom once we’ve got the Court format accounts.  And my introduction to this, by way of the fact that we’re going to be moving this into an audio, is that we’re going to have our own mini-series on this issue, where we’re really going to flush out these topics.  But I think its worthwhile talking about them briefly now, so that people understand what they’re going to get themselves into once they’ve got these beautifully created Court format accounts.

Suzana Popovic-Montag: And procedurally speaking, certainly here in Ontario, the Rules of Civil Procedure will govern what is included in an Application to pass the Court format accounts. And we started when, before we got into this discussion of how we would audit estate accounts or how to prepare a best kind of set of accounts in the circumstances, we talked about the fact that it’s all part of an application process.  And so there will be an actual Court date that’s assigned to the hearing for the return of the executor’s accounts, and you’ll serve a Notice of that application on all the beneficiaries together with, in many circumstances and many situations, a copy of the accounts as well. And the Rules themselves specifically provide what has to be in this Application record and I thought, Ian, it might be good to just sort of flush out some of those specific requirements.

Ian Hull: Alright. Well I think and it’s helpful because it’s not quite as daunting when you get the document itself thrown at you because, as I say, a lot of these accounts are passed in a non-contentious environment.  But it’s legal mumbo-jumbo to some people so you want to make sure you sort of know what you’re getting yourselves into when you get it. And the main document behind the accounts is the Affidavit verifying the accounts, they’re proving that you’re swearing to the truth of the accounts, and that’s the fiduciary sort of statement that says these accounts are true and accurate.

Suzana Popovic-Montag: And that Affidavit, as I say, is included in the record that is served upon everyone who has a financial interest in the estate. And financial interest in the estate I think we’ve talked about on previous podcasts, has a very broad meaning in the sense that even people with a contingent interest in an estate will be served with the accounts as well.

Ian Hull: And talking about service, we don’t want to forget that there may be government agencies that we have to serve, of course; the Office of the Children’s Lawyer should there be any minor child’s interests, or interests of those who are unborn and unascertained.  And without getting too technical about it, we just want to look at the trust document or the Will and see if there is a trust. And typically if there’s a trust, more often than not, almost certainly in fact, the Children’s Lawyer would be served, that’s the Office of the Children’s Lawyer.  And it’s different in each Ontario jurisdiction, but basically the lawyer in charge of minor interests. Another person to be concerned about serving is

Suzana Popovic-Montag: the Public Guardian and Trustee. That office would be served on behalf of any incapable beneficiaries of the estate. And so just like the Children’s Lawyer protects the minor, the unborn or the unascertained, the Public Guardian and Trustee here in Ontario will represent those incapable beneficiaries.

Ian Hull: So those are just things to keep a heads-up on so that you don’t get out of the box and miss a page of the application process by not putting important entities on notice. Obviously, we come back to our cardinal rule: Read the document, read the Will, read the trust and make sure you’ve served everyone named in that, but the Public Guardian and Trustee and the Office of the Children’s Lawyer, are two entities that aren’t necessarily named and quite often aren’t named, so just a heads-up. 

So I think that gives you sort of a sense of what the document itself, in a friendly environment will be, so I think we’ll wrap up today’s podcast and again reminding you, please feel free to e-mail at hullandhull, h u l l a n d h u l l @gmail.com.

Suzana Popovic-Montag: Or feel free to call and leave us an audio comment at 206-457-1985. Thanks very much, Ian.

Ian Hull: Thanks, Suzana.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

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Listen to The Absentee Act

This week on Hull on Estates, Christopher Graham and David Smith talk about The Absentee Act and some of the different scenarios that it applies to.

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 Estates blog.

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Listen to The Surviving Spouse

This week on Hull on Estate and Succession Planning, Ian talks about an interview he did this week for a new website called Law is Cool and why he podcasts.

Ian and Suzana discuss the importance of preparing for the death of a spouse or for the welfare of your spouse upon your death. This preparation includes having a good idea of the assets you share and the importance of appointing a guardian for your children.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

The Surviving Spouse - Hull on Estate and Succession Planning Podcast #96

Posted on January 22^nd, 2008 by Hull & Hull LLP

Suzana Popovic-Montag:  Hi, and welcome to Hull on Estate and Succession Planning.  You’re listening to Episode #96 of our podcast on Tuesday, January 22^nd, 2008.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by

Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada.  Here are Ian and Suzana.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi there Ian, how are you?

Ian Hull: I’m just great, thanks.

Suzana Popovic-Montag: That’s good.

Ian Hull: We’re moving along into ’08.  I was listening to our last week’s podcast last night actually while I was walking my favorite animal in the world, Lola, our new dog. And I noticed that your voice isn’t as loud as mine in some of these, so you have to speak up. I should have told you this off-air, but I was just thinking of it now.

Suzana Popovic-Montag: Nothing like improvising, Ian. Thanks very much.

Ian Hull: So get closer to the microphone. Okay.  So, you know, it’s been a fun week this week. I just got interviewed actually and it won’t be launched, I’m told, it’s a podcast and website called lawiscool.com. And I just got interviewed by these guys about an hour ago and it won’t be up into the podcasting world for some months, they tell me, because they are all volunteers and trying to pass their courses at the same time. But it was interesting because the first question that came to mind as we were off-air and talking about it was, you know, why the heck are we doing this, and what are we doing podcasting as a firm. And I told them a story the other day, it happened to me, was I was on a file and we were in a meeting with my client and across the room was the other client with their lawyer. And the client on the other side looks across the table and says, “I’ve listened to your podcasts, you know that, Ian?” I had a good laugh because I thought, that really is what we’ve been trying to do and that is, educate ourselves, educate others and have some fun along the way.  And we certainly are not discriminating in terms of who we want to educate, whether it’s on the side of good or evil.

Suzana Popovic-Montag: Great story, Ian.

Ian Hull: Not that they’re on the side of evil, but the right or wrong. So anyway, listening to last night again, we really, I think, touched on a topic that was near and dear to many people’s hearts and that is, how you deal with funeral arrangements and things like that, some of this pre-probate issues. So I thought another one that can be particularly volatile and one that is worth talking about, what to consider, and that is, and we’ve touched on this briefly, but let’s really drill down on it, and that is, what about the surviving spouse? Now the scenario is whether you’re a surviving spouse or you’re the executor and you’re going to have to deal with the surviving spouse, what sort of pre-probate unique characteristics does that bring into the element? Obviously the first thing that comes to mind is the emotions. You’re a surviving spouse; you have lost your partner. It is, you know, difficult to organize a funeral at the best of times.  Well, it’s also difficult to react to that horrible loss. So we thought we might talk a little bit about some of the things that, as a surviving spouse, you’ll want to keep your eye on the ball on before you get into the fancy seal stage in life in terms of the administration of the Will.

Suzana Popovic-Montag: And I think part and parcel of that is for you, as a surviving spouse, in that kind of situation, is you want to be able to, sort of, step back, notwithstanding the very emotionally charged atmosphere that you find yourself in and determine what kind of financial requirements you’re going to require going forward, see what it is that the will actually provides for you, and have the opportunity to speak with a lawyer to see what your options are in the circumstances.

Ian Hull: So one of the things that we tell a lot of our clients, and most of them don’t listen to us on, but this really comes back home to roost, is keep some meaningful summary, list, control, leads on your financial assets, so that your surviving spouse can determine really what he or she is going to need. You know, within a very short period of time, your surviving spouse is going to need to know what they’re going to be able to live on, what’s left, whether they’ve got to work more, work less, how they’re going to deal with it.  And if you haven’t organized a financial advisor or you don’t know where the life insurance policies are kept, or all of that sort of simple stuff, it’s going to make it that much harder for your surviving spouse in a non-contentious situation to get up on his or her feet.

One of the classic questions that a surviving spouse has to ask is whether or not they got enough under the Will. And that comes back to my earlier comment and that is, make sure that you make it as easy as possible for your surviving spouse to find where the assets are and determine what assets are there. But at the same time, you also want to acknowledge the fact that once you figure out that there is $100.00 there or there is $200,000,000.00 there, your surviving spouse has some core legal rights that they’re going to want to consider quickly.  And you can’t fix that. That’s just the way it works. It’s a community of property division, essentially an equal division on death, if you haven’t provided properly under the Will.  So you’ve got to accept that and so it comes back to the same thing; get the documents organized to make it easier for a surviving spouse to make an educated decision as to whether or not what he or she wants to do after death.

Suzana Popovic-Montag: And what you’re referring to there, Ian, is an equalization under the Family Law Act.  In Ontario, and I think a lot of jurisdictions have similar legislation, that provides for a division of assets on death, in the event that the surviving spouse chooses not to take his or her entitlement under the Will. And one of the key things with these elections and particularly under our Family Law Act is the fact that it is very time sensitive and that a surviving spouse has only 6 months within which time to decide whether or not to take the entitlement under the Will, which means you have to determine what that actually amounts to, or if you’re going to take your election under the Family Law Act.

Ian Hull: So that time sensitivity can get extended by lawyers getting involved and getting judges saying, “Okay, you can have some more time”.  But it’s there for a reason, and that is, is that people have to get on with their lives and they have to deal with the administration relatively quickly. So we don’t want to forget, again, it really does pay to be organized and to make things easy for your spouse.

Suzana Popovic-Montag: And another thing that I often will raise with people is the fact that spouse does not include a common-law or a same sex partner, and so that when it comes to these kinds of particular entitlements under the legislation, you want to make sure that you fit the proper definition of that, so that you can be entitled to it.

Ian Hull: And we, as lawyers, are always careful to make sure that strict deadlines aren’t missed, so we make a note of our 6 month election and I tell my clients to do the same, so that they are mindful of the fact that they’ve got to make some decisions fairly quickly and therefore it keeps the heat on them to track down assets and get organized.

Suzana Popovic-Montag: And another thing that arises in these kinds of situations is that if a spouse actually does elect under our Family Law Act, then he or she can’t act as the estate trustee, even if they’re named as such in the Will.

Ian Hull: One other claim that we’ve talked about before and we won’t go into great detail because we’ve spent a fair amount of time in recent podcasts on, though, is the fact that if there isn’t enough under the Will, you can elect under the Family Law Act as we talked about and we can equalize.  There’s another issue is that even if you got under the Will a certain amount of money and you needed more, you can make a claim as a dependant under most of the common law jurisdictions, where essentially you go to the Court and say, “Yeah, that’s fine, I’ll take my $50,000 a year out of the trust, but that’s not enough, I need a little more”, and the way I can claim that is through the dependant relief provisions of the Succession Law Reform Act.

Suzana Popovic-Montag: And that’s also a time sensitive election, Ian, because that application, if you’re going to bring it, has to be filed within 6 months from the time you do get the certificate of appointment or that probate. So another thing basically for us as lawyers and for clients to diarize and to sort of follow up on.

Ian Hull: So the final sort of surviving spouse issue I would want to talk about is that of the question of custody of child, children, and guardianship of property for the children. And before we get into that, I need to go on my typical rant with clients that I do and that is; just stepping back when you’re drawing a Will, the decision as to who your guardian is going to be can be the roadblock to doing a Will. And there’s nothing more silly than to let that be your roadblock because you need a Will far more important than you need to pick who is going to be your guardian of your children. I know it’s an emotional issue and young parents can never understand this, so they put off doing their Will.  And they just create more problems than it’s worth, because now, when someone’s died and say you’ve died with young children, the way it works is that at law, it really shows you it isn’t that important of a decision to make

Suzana Popovic-Montag: And you say that, I guess Ian, because you’re referring to the fact that when there is an appointment in a Will of someone to have custody of a child, that appointment is going to expire within 90 days from the date of death. And so, at that point, someone else or perhaps even that same person will actually have to bring an application to have permanent custody or guardianship determined.

Ian Hull: That’s right. And so you’ve fretted about this and you find out that it really is only a 90 day appointment and it’s subject to a further Court order.  So you’ve fretted about not doing a Will and you’ve created more of a mess then by not doing a Will because of that. And in Ontario anyway, but most common law jurisdictions, talk about the fact that you need a guardianship of property for the child and that exists where you are trying to pass on assets.  For example, in Ontario, for more than $10,000 to a child, you have to actually get a special guardianship order to administer that money that’s above and beyond $10,000.

So we get into those kinds of issues, and as I say, they can create log jams unnecessarily in almost every respect. So before we sign off, I was struck by a recent story that I saw and in terms of some frailties of the legal system and some of the craziness of it. Some years ago…this is a true story…to help fight crime, the founders and the mayors and the city council in Tacoma, Washington, a place that’s near and dear to me because my sister actually lives right near there, came up with a unique way of thwarting criminals.  And this is a true story in Tacoma, Washington, if you can believe it. They passed an ordinance; the City passed an ordinance which, in part, reads as follows: “It is mandatory for a motorist with criminal intentions to stop at the city limits and telephone the Chief of Police as he is entering town”. Now I made an inquiry with the city hall of the Town of Tacoma, Washington and asked about this ordinance.  And indeed it does exist.  And they admitted on the phone that there is no record of anyone making such a phone call. So you can see how crazy law can be.  And I thought that was a funny story that I ran into.

So we’ll work through this and continue to work through these administration issues in our next podcast. Thanks very much, Suzanna.

Suzana Popovic-Montag: Thanks to you, Ian.

Ian Hull: Bye.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

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Listen to "Litigation Involving Minors"

In Episode 70 of Hull on Estates, Paul and Sean discuss Court approval of settlements affecting the interests of minors. They refer to Rule 7.02 and 7.08 fo Ontario's Rules of Civil Procedure as well as the case of Marcoccia (Litigation Guardian of) v. Gill, 2007 CarswellOnt 15 (Ont.S.C.J.).

Click  "Continue Reading" for the transcribed version of this podcast.

Litigation Involving Minors - Hull on Estates Podcast #70

Posted on July 31^st, 2007 by Hull & Hull LLP

Sean Graham: Good morning. It’s Tuesday, July 31^st, 2007 and you’re listening to Episode 70 of Hull on Estates.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.  Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills. Now, here are today’s hosts.

Paul Trudelle: Hello Sean.

Sean Graham: Morning Paul, how are you?

Paul Trudelle: Very good thanks. 0Today we thought we would talk about the approval of infant settlements in the context of litigation involving minors and what is required in order to settle a case that involves a minor. 

Sean Graham: Yeah, and just to put it in context, it’s an interesting proceeding because often what has happened is that you’ll be dealing with a family, generally in which a minor has been injured, sometimes quite badly.  And they will then have been through a very difficult litigation proceeding against insurance companies.  And once they’ve settled that litigation, they figure thank goodness, the ordeal is over, we can get on with our lives.  However, they need court approval of that settlement.  And the court approval is not a rubber stamp, and so that can cause a lot of dismay.

Paul Trudelle: That’s true.  Nothing is ever easy in litigation.  So with the scenario that you put forward, the car accident involving a minor, the minor is hurt, the minor brings a claim for damages. How is that claim prosecuted on behalf of the minor?

Sean Graham: Well the first step is that a litigation guardian needs to be appointed to protect and prosecute the interests of the minor who cannot do it him or herself. 

Paul Trudelle: Right, and the provision for that is Rule 7.02 of the Rules of Civil Procedure that deals with litigation guardians for plaintiffs.  And the procedure there for appointing a litigation guardian is quite simple and straight forward, I understand.

Sean Graham: Yeah.  You have to present the court with an Affidavit which covers off certain grounds. And the court appointment can be sought.  But the more simple way to go is to file an Affidavit saying that first: you consent to act as litigation guardian; secondly, that you’ve given written authority to a named lawyer to act on your behalf; thirdly, you have to provide evidence concerning the nature and extent of the disability.  And for a child, it might simply be that the person is a minor.  But often the accident will have caused more profound disabilities. You have to, for a minor, you have to simply state the minor’s birth date, whether the minor or person under disability is ordinarily resident in Toronto, setting out the relationship to the person under disability, and with minors, you’re often dealing with a parent, stating that there’s no interest of the litigation guardian opposing the interests of the child.  And finally, acknowledging that you’ve been informed of your liability to pay personally any costs awarded against the litigation guardian or against the minor.

Paul Trudelle: That’s right.  And that’s all from Rule 7.02 which sets out, in effect, a checklist.  If your Affidavit hits all of those points, then that Affidavit gets filed with the court when the claim is commenced.  And you’re off and running as litigation guardian. No formal order is required.

Sean Graham: Exactly.  So it’s a fairly simple proceeding.  And then the defendants can deal with you, knowing that you actually have authority.

Paul Trudelle: So you’re off and running, you’re going through your litigation, the minor is acting, or represented by a litigation guardian. Now, can the litigation guardian enter into a settlement on behalf of the minor?

Sean Graham: Yes, with a pretty huge caveat. You can enter into a settlement, but the settlement cannot be enforced unless you get court approval of the settlement. So for all practical purposes, you’re going to need court approval of that settlement.

Paul Trudelle: So what the parties would normally do in those cases is settle the case, subject to court approval of the settlement on behalf of the minors.  And failing that, the settlement isn’t binding on the minors.  And any defendant wouldn’t settle on that basis without court approval because it’s not binding and it leaves the defendant open to litigation once the minor comes of age. 

Sean Graham: For sure, and the thought is generally that the lawyer advising on the settlement has done a good job, the litigation guardian has done a good a job. And the thought tends to be that no problem, we’ll get that approval, it’s just a rubber stamp motion. That is true in some cases but it’s a dangerous assumption because the courts, I’ve found, are becoming more and more alert to these settlements.  And more and more are serving as sort of an auditor function to make sure, as a last barrier to protect the minor, that the settlement is in fact in minor’s interest.

Paul Trudelle: So what is the procedure for getting the motion to approve the settlement before the court, to get the court to look at the settlement, to consider it and say “yes, this is a valid settlement” or “no it’s not?” And then we’ll talk about what happens if the court rejects the settlement.

Sean Graham: Well you bring a motion under Rule 7.08 of the Ontario Rules of Civil Procedure.  And it’s a motion.  You can bring an application…

Paul Trudelle: I think you bring an application if there has been no action started, so…

Sean Graham: That’s right.

Paul Trudelle: If you’re at…if you were able to negotiate a settlement before any claim is even started, any defendant or any payor in that circumstance, would want court approval. So in that case, you’d start a separate application.  Normally, however, there’s an action already started, so you bring a motion in that action.

Sean Graham: Yeah exactly, thanks Paul. And the materials you have to file in support of your motion or application is an Affidavit of the litigation guardian setting out the material facts and the reasons supporting the settlement and the position of the litigation guardian in respect to the settlement which is, of course, that the litigation guardian agrees with it. You also need, though, and this is kind of an interesting one, you need an Affidavit of the lawyer who acted for the litigation guardian, setting out the lawyer’s position in respect of the settlement. And then you need the minor’s consent in writing if the minor is between the age of sixteen and the age of majority, eighteen, unless the judge orders otherwise. And then finally, of course, you actually need a copy of the Minutes of Settlement.

Paul Trudelle: So with those materials, I understand preparing those materials can often be a difficult or a bit of a fine line that you have to walk down because you need to put some evidence before the court to say that the settlement is reasonable.  But you want to be careful not to tip your hand too much.  You can’t go in with an Affidavit saying wow, I can’t believe the defendant settled this on the basis that they did. It’s a great settlement because we had no case.  So you’ve got to be very careful in preparing your materials there. How do the courts deal with the Affidavit materials that you’re able to put before it?

Sean Graham: I think it’s a really tough one.  Especially, I mean, you need an Affidavit from the lawyer.  So, in essence, an Affidavit from a lawyer which does not at least imply what the legal advice was, is a useless, in my view, Affidavit.  It’s not helpful to the court. So the lawyer is put in a very difficult position because you obviously don’t want to disclose privilege or breach confidentiality, disclose privileged information or breach confidentiality.  But by the same token, you have to swear an Affidavit. So again, you’re put in a very difficult position of either just doing a sort of a pablum Affidavit with a bunch of motherhood statements which don’t really mean very much to the court, which I don’t think can have been the intention when the Rule was drafted.  Or setting out what your legal advice was and why. I think it’s a very difficult problem.

Paul Trudelle: Probably one of the best ways to address that is to either put all of that information in and ask for an order that the motion be sealed if that’s possible.  Otherwise it may be just enough for the lawyer to say that in my experience, in my considered opinion, the reason the settlement is reasonable and set out some of the basis upon which the settlement was entered into.

Sean Graham: For sure.  I just, you know, to me it’s, you wouldn’t be before court unless that was the case.  So, you know, because they wouldn’t have settled. So, I suspect that there will be some changes relatively quickly to resolve this theoretical…I view it as a bit of a deadlock.  I think it’s a great Rule because the court should be involved in these things, should be a protection to the minor. But by the same token, there needs to be some protections for the lawyer and the litigation guardian in terms of what happens if the court doesn’t approve the settlement? Then you’ve got all this material before the court in terms of the weaknesses in the minor’s case.  And that cannot have been the intent either.

Paul Trudelle: That is a difficult issue. Another difficult issue is that the lawyer normally has to put in some information with respect to his or her fees.  The settlement often calls for a payment of fees of some sort to the lawyer and that will require court approval as well. So there must be some information there with respect to the fees and the reasonableness of those.

Sean Graham: No question.  And so you’ve got the lawyer being advocate for the client in terms of pushing this settlement through.  But at the same time. lawyers want to get paid as much as any service provider.  And so you, at the same time, you’re advocating for yourself as to why your fees are valid. And the question I always have is what happens if the court agrees with the settlement but not the fees? Do you have a settlement? And if not what, what happens then?   I think that’s another tough, tough sort of nut to crack.

Paul Trudelle: Difficult issues indeed. Now if the court does approve the settlement and the funds are payable to the minor, is that the end of it? The cheque is written to the minor and he’s off to the races, or the racetrack.

Sean Graham: No, it never seems to be over. The next step then, and this sometimes can happen all at once, is a guardianship application.  And it’s most often the litigation guardian also wants to become the guardian of property of the minor and that’s a whole other proceeding. 

Paul Trudelle: And I think that’s often a bit of a shock to the parents of the minor.  The parents can’t presume and it’s not the case that they’re automatically the guardians for property of the minor. A separate application is required for the parents to be appointed as the guardian. Now that procedure, I understand, can be brought as a separate guardianship application or can possibly be brought in the context of the action before the court?

Sean Graham: Yeah.  There’s a recent decision on this actually, and it’s quite a lengthy and well considered decision by Justice Wilkins.  It’s the Marcoccia decision.  And we’ll put that in the show notes.  But Justice Wilkins goes through a lot of issues at length.  And is of the very strong view that in fact all these things should be brought at once because they’re all, all the facts obviously are related and there’s going to be a lot of duplication if you bring the motion for court approval and then the application for guardianship.  And so Justice Wilkins was of the view that it should all be done at the same time wherever possible. And, you know, to keep the legal fees down and don’t have duplication and so forth.

Paul Trudelle: I also think that the judge considering the motion to approve the settlement has all of the information needed or a lot of the information that would be considered in determining whether the guardianship plan is appropriate as well.

Sean Graham: Yeah.  And what in practical terms it does is the children’s lawyer generally is on notice of the motion to approve the settlement but is definitely on notice of the guardianship application. So if the children’s lawyer has not been brought in on the motion to approve settlement, and it’s certainly my practice to bring them in anyway, but if they’re not brought in on that, they’re going to be brought on the guardianship application. So you’ll be dealing with another party.

Paul Trudelle: We should talk a bit about that in the notice when you move to approve a settlement. The Rules don’t expressly require the children’s lawyer be put on notice.  It’s the Rule directs that the court, if it sees fit, can direct that the children’s lawyer be served. I think the best practice, however, is to serve the children’s lawyer with the materials at for instance.

Sean Graham: I think so too because the majority of the time, if you haven’t, the court is going to ask you to do it anyway.  And then you go to court twice when, you know, you might not have needed to so. I think the approach of the children’s lawyer to these things might actually be worth another podcast.

Paul Trudelle: I think so.  And I think the guardianship for property of minors merits its own podcast as well. So maybe we’ll wrap up at this point.  Just before we do, another procedure short of applying for guardianship for property of the minor is simply to have the funds paid into court.

Sean Graham: Yeah.  And that is maybe a lot more efficient.  The problem is you lose control if you’re the parent of the child.  And the child him or herself, you know, may want their parents making a lot of these decisions.  And so you may lose the sort of investment advice that you would normally get under a guardianship and so on.  But it’s definitely a quick way to do it.

Paul Trudelle: I think that’s very helpful Sean, thank you very much.

Sean Graham: Thank you Paul.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

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