In British Columbia, unlike Ontario, intestate laws now provide the same rights to common law spouses as to married spouses, if the couple lived together in a marriage-like relationship for a period of at least two years before the death of one of them.  Recent case law out of British Columbia has grappled with the issue of identifying common law spouses in cases of intestacy. 

In Austin v. Goerz, 2007 BCCA 586, the deceased had been separated, but not divorced, from his wife for six years.  During the last six years of his life, the deceased lived with another woman, Ms. Goerz, as husband and wife.  The deceased died without a Will.  On the death of the deceased, the legally married spouse, Mrs. Austin, brought a claim seeking a declaration that Ms. Goerz was not the deceased’s common law spouse.  The lower court dismissed Mrs. Austin’s claim, and she appealed to the British Columbia Court of Appeal.  On appeal, Mrs. Austin argued that the deceased, while legally married, could not have a common law spouse as he lacked the legal capacity to marry.  Mrs. Austin also argued that Ms. Goerz was not a common law spouse as there was no financial dependence between her and the deceased during their relationship.  Both arguments were dismissed.  The Court of Appeal recognized that common law relationships can exist even though one or both partners lack the capacity to marry.  Furthermore, lack of financial dependence is not determinative in identifying common law relationships. 

Have a great day!

Bianca La Neve 

This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.

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.

The Golubchuk Case and the Health Care Consent Act - Hull on Estates Podcast #123

Posted on August 12^th, 2008 by Hull & Hull LLP

Megan Connolly:  Hello and welcome to Hull on Estates. You’re listening to Episode #123 on Tuesday, August 12^th, 2008.

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.

Megan Connolly:  Hi and welcome to another episode of Hull on Estates. I’m Megan Connolly.

Sean Graham: And I’m Sean Graham.

Megan Connolly:  If you want to be heard on Hull on Estates, you can participate in our discussion by leaving a comment. Give us a call at 206-350-6636. The number is in the show notes along with our e-mail address which is hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Sean Graham: Hi Megan, how are you?

Megan Connolly: I’m fine, how are you?

Sean Graham: Pretty good thanks. Well we thought we’d start off today by speaking about the Golubchuk case out of Manitoba and then segway into discussion of the Health Care Consent Act of Ontario which would have applied in the Golubchuk case had it been an Ontario case, but of course, it was Manitoba. So maybe Megan, if you can just sketch out the Golubchuk case it might be helpful.

Megan Connolly: Sure. The case arose at the end of 2007 in November, where an elderly man was admitted to the hospital and was severely ill. At the time he was admitted he couldn’t breathe on his own, he was on a ventilator, there was a tube down his throat, his brain was functioning but not very well; he couldn’t walk, he couldn’t speak and as a result of a cardiac condition, his heart wouldn’t beat properly.

Sean Graham: And it seems that the doctors, or some of the doctors at least, seem to have been pretty sure that Mr. Golubchuk was not going to recover and that continued life support measures, or extraordinary measures, whatever term you want to use, were not benefitting him and it seems as though the doctors, most of them at least, were of the view that life support should be discontinued. On the other side, it looks as though some of Mr. Golubchuk’s children felt differently and wanted to prolong his life.

Megan Connolly: Right. So what the doctors wanted to do, as you said, was remove the patient from the ventilator which isn’t an unusual thing to do when doctors have decided the person is not going to get better and, of course, when the family agrees. Now in this case, the elderly man’s children said first of all, that the removal of the ventilator or the withdrawal of the life support would require the consent of the children, that the removal of the ventilator or life support by the doctors would constitute assault and would constitute battery, in that it would, at a minimum, hasten the elderly man’s death. Another issue that was raised was the fact that the withdrawal of the life support would seem to contravene the man’s religious beliefs. He was an Orthodox Jew, and the analogy they used was imposing blood transfusion on a Jehovah’s Witness. I guess the religious belief for Jehovah’s Witnesses would preclude the use of a blood transfusion.

Sean Graham: So I understand that it looks as though the hospital was of the view that the family did not understand adequately at least, the seriousness of Mr. Golubchuk’s condition, that the conclusions reached by the doctors were acceptable and conformed to the standards the doctors felt themselves needed to apply, that the withdrawal of the medical treatment could well be in Mr. Golubchuk’s best interest, even if it meant that he would succumb to his illnesses, and that the decision to withdraw medical treatment is that of the physician and not that of the patient or the Courts. And so it was quite an argument that was set up in this case between the family and the medical professionals.

Megan Connolly: Now, in November 2007, the family won a Court injunction preventing the doctors from withdrawing life support and a few weeks later the Court ordered that the matter be set down for trial. Now, while this took a toll on the family, it also took its toll on some of the doctors at the hospital. A number of them resigned, saying that their personal conscience and their professional ethics prevented them from continuing to provide medical interventions that, in their mind, would harm a patient without any prospect for future benefit. 

Sean Graham: Even though the matter was set down for trial, it never made it to trial because Mr Golubchuk died. And so the delays we often encounter in the trial system in this case really meant that there was a tremendous amount of controversy and difficulty and stress, and in fact that the system did not end up giving the parties the chance to argue the matter and find out what the Court would have believed at the end of legal arguments.

Megan Connolly: Now the family had originally brought a law suit against the hospital, although last week I saw an article saying that they’d since abandoned the law suit.  So I guess with respect to this matter, nothing further is going to happen in the Court system.

Sean Graham: Yeah, it looks that way. And I think it’s helpful to turn to the Act in force in Ontario that would cover some of these issues, and that’s called the Health Care Consent Act. And Section 10 of the Health Care Consent Act talks about needing consent before treating a patient.

Megan Connolly: And what that Act says, is that when a doctor, or I guess a health care practitioner, proposes treatment for someone, they can’t administer their treatment unless the person consents to it.

Sean Graham: Now the question, of course, is what’s consent?

Megan Connolly: Um hm.

Sean Graham: And so the Act helps us out there also by stating out the elements of the consent, and there’s four elements. I’ll just go through them. The first is that the consent must relate to the treatment, so that’s fairly self-explanatory. The second is that the consent must be informed so the patient must have some understanding of exactly what they’re getting into. Third, and this is kind of obvious I think, but it’s there anyway, the consent must be given voluntarily.  And then finally, which is also obvious, the consent must not be obtained through misrepresentation or fraud.

Megan Connolly: And this goes into, I guess, the next aspect of consent, which means it has to be informed consent. Now the issue of informed consent has given rise to enough litigation although it’s probably the purview for today, but I guess, basically put, the patient needs to be provided with sufficient information about the treatment so that they can, in a knowledgeable and informed way, consent to it.

Sean Graham: And the statute goes into a little bit more of a definition stating that the consent is only informed if, before giving it, the person consenting received the following information, and there’s a list in subsection 11(3) of the Health Care Consent Act. There’s six items. The first is that the person needs to know sufficient information about the nature of the treatment; (2) is the expected benefits of the treatment; (3) the material risks of the treatment; (4) the material side effects of the treatment; (5) alternative courses of action; and then (6) the likely consequences of not having the treatment. 

Now in Mr. Golubchuk’s case, I’m not sure that would have ever been possible for Mr. Golubchuk.  It’s not clear to me whether he had any chance really, before he was in the position that led to this case, whether he had any chance to obtain treatment.  But certainly by the time this case came to the forefront, he did not have capacity and so a different section of the Act, which is entitled “Consent on Incapable Person’s Behalf” would have applied, and maybe you can just take us through that, Megan.

Megan Connolly: Right, so as you said, I mean it’s great for someone to consent, but it’s not unusual for someone to just not be able to consent, and in this case I think the man was in a coma and couldn’t speak and didn’t really understand what was going on around him.  So you can’t have informed consent, but obviously it doesn’t make sense to say, well we’re just not going to treat someone if they can’t consent. So when somebody is incapable of consenting to treatment, and that doesn’t mean they won’t consent to it because they don’t want to but they’re mentally or physically incapable of providing that consent, the Act provides for a list of people who can give or refuse consent on the person’s behalf. There are eight different people, starting with the person’s guardian of the person or their attorney for personal care, if they have one. They don’t always have one. The next person to be able to give consent is somebody who has been appointed as the incapable person’s representative by the Consent and Capacity Board.  After that it would be the incapable person’s spouse or partner.  Next it would be the children or parents of the incapable person.

Sean Graham: And if there is the Children’s Aid Society or it’s a situation where the Children’s Aid Society has lawful authority to give that consent, they can stand in the place of the parent. And it’s noteworthy that this paragraph does not include a parent who has only a right of access.  So this could have family law ramifications as well if spouses are in the course of or have completed matrimonial litigation.

Megan Connolly: So the parent who only does have a right of access may have the right to give the consent to treatment on the person’s behalf but not if there’s a parent who, I guess, has custodial rights.  And after that it’s a brother or sister, then any other relative. Now like I said, this is a rank order, so number one is the person’s guardian of the person and then you go down the list if no one else can provide consent.

Sean Graham: Now one aspect I found that was interesting in this is that the meaning of spouse is defined, and it makes a certain amount of sense because it needs to be clear that a spouse making this choice has to be a spouse under an ongoing relationship. Subsection 8 of Section 20 states that “two people are not spouses for the purposes of this section if they are living separate and apart as a result of the breakdown of their relationship”. I think it’s pretty clear why that section is in there.

Megan Connolly: Now when it comes to giving or refusing consent, the person just can’t do it arbitrarily. There are certain principles that they have to take into consideration when making a decision.

Sean Graham: Now that’s someone appointed under this section.

Megan Connolly: Yeah.

Sean Graham: An individual deciding on their own, my understanding is as long as they are capable, they in fact, could be arbitrary.

Megan Connolly: Right.

Sean Graham: But, a substitute decision-maker is a different kettle of fish.

Megan Connolly: So the first thing they have to take into account is whether they are aware of any wish the person has made previously that would deal with situations where consent had to be given.  So when capable, had they always been clear that if they were incredibly ill and weren’t going to recover, maybe they’ve stated while capable that they’d want support withdrawn. Alternatively, maybe they’ve said the opposite.

Sean Graham: There’s a list in Section 21 of the Act that sets out the factors to go into this. I think that, for the purpose of wrapping up, I think that maybe one of the best principles to come out of this is to be very careful in choosing an attorney for personal care because that is really the only way that someone can exercise any kind of control in planning for a situation where someone else is going to have to make the decision for them. I guess you can tell your family members but you’re not really sure who’s going to be around and who’s going to be making that decision.  So it seems to me the best way to try to have some control over these types of decisions is to appoint an attorney for personal care to make them on your behalf and then have a long heart-to-heart with that person, maybe more than one, as the years go on, in order that they will have some background in order to help them make that decision.

Megan Connolly: Right. So thank you very much. It’s been nice talking to you, as always, Sean.

Sean Graham: Yeah, thanks a lot, Megan. It was certainly a pleasure and I look forward to podcasting with you again soon.

Megan Connolly: Well I think that brings us to the end of this week’s discussion. Thank you for listening and thanks for joining me today. And we look forward to hearing from our listeners, so you can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. Be sure to visit our blog at estatelaw.hullandhull and the and is a-n-d not ampersand .com where you’ll find even more information and discussion on today’s practice of estates law. We hope you enjoyed the show. I’m Megan Connolly.

Sean Graham: And I’m Sean Graham, until next week, so long.

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.

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

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

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Becoming an Executor After Death - Hull on Estates Podcast #115

Posted on June 17^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to Episode 115 of our podcast, on Tuesday, June 17^th, 2008.

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.

Ian Hull: Hi, this is Ian Hull.

Suzana Popovic-Montag: And Suzana Popovic-Montag.

Ian Hull: And we are thrilled to be back on Hull on Estates. Before we get into this, we have to remind everyone that Suzana’s voice may be affected slightly today in the podcast. She has just suffered a broken wrist and has full access to everything except a fairly immobile right arm which I understand she is right-handed.  So any errors and omissions in today’s podcast are entirely related to the bad wing.

Suzana Popovic-Montag: And God knows, I’m always looking for an excuse.

Ian Hull: So, we’re excited to be on Hull on Estates. We’ve had some really interesting episodes before this one and a great one with Dave Smith last week.  But why don’t we just remind everyone to please feel free to call in on 206-350-6636.

Suzana Popovic-Montag: And you can find that number in our show notes if you didn’t catch it, along with our e-mail address which is hull.lawyers@gmail.com.  And, of course, you can feel free to visit our blog as well, at estatelaw.hullandhull.com.

Ian Hull: Well Suzana, we enjoy doing our podcasts weekly on Hull on Estates and Succession Planning, and in the past series that we’ve been working on, in that podcast venue, we’ve been focusing on estate administration issues and how to better be prepared to be an executor. Our last few podcasts have been dealing with estate accounting issues, but prior to that we had focused a lot of our attention on what are the early stage steps that we must consider or we think we must consider, and we tell our clients to consider, when they take on the heavy burden of being an executor. So I thought today would be a good opportunity to go through some of the practical early steps and I think we want to focus on the steps for a very specific period in time.

Suzana Popovic-Montag: And that period, of course, is the one just after being advised of the death.  And the first question that comes to us as a lawyer is, who is our client? Ultimately, you know, we’ve got someone who comes in to us, they’ve got a copy of a Will, and the Will appoints an executor or it doesn’t, or there is no Will.  And the question is, how do we assist the individual who is sitting across from us right from the get-go?

Ian Hull: And at that point, I always like to focus on what possible roles that individual or that group of individuals has in the process. An easy example for me is when you have a situation where you might have a surviving spouse as named executor, plus you have the family accountant and you have the family lawyer, who have been trusted advisors of the deceased.  And, of course, the surviving spouse who is typically financially significantly impacted by the Will. And in that scenario at that first meeting and that first consideration, who your client is, is very important, because that surviving widow will have separate individual, if financial interests, that need to be considered. And I think an easy example is the case of Reed vs. Reed Martin, probably ten years ago now, but where the Court essentially had set out the practice being that if you have a surviving spouse, you probably need to, as the lawyer for the estate, tell that surviving spouse about this delineation, this personal interest, and this fiduciary interest that she has.

Suzana Popovic-Montag: And I guess no one could really tell the client better, Ian, than you, having actually argued that case from what I recall.

Ian Hull: Well it was one of the few cases that I actually won, but the case stands for the proposition that a surviving spouse, when making an election or obviously a Succession Law Reform Act claim, is really essentially precluded from acting as a trustee.  And that’s sort of a stark example of how you want to initially talk about and consider who is your client.

The next issue which is maybe a bit morbid but you’ve been given the job of an executor and morbid is your life, the physical issues and the urgent physical issues that arise.

Suzana Popovic-Montag: And I guess what you’re eluding to there, Ian, is the fact that in most cases, I would say almost these days, people are actually signing organ donor cards and providing for the use of their body upon their death.  And how an executor is going to deal with that, in light of firstly, the emotional issue of dealing with the death at all; and secondly, possibly competing family abuse on whether or not those issues of the deceased should, in fact, be respected.

Ian Hull: And this whole question comes from the fundamental obligation of an executor to have “control and custody of the body”. You typically won’t have probate at that moment in time, but you will have the obligation to deal with the body. The transplant issue is a great example of a complex scenario that you’re going to probably have to consider.  And the basic issue, too is, of course, getting the funeral organized and dealing with what can be family dynamics as to cremation or burial and sometimes the Will doesn’t speak to it, and those kinds of things. So the physical issues about that are important.  And, you know, in terms of the transplant issue, of course, there’s the possibility that there is some tension as to whether or not, of course, transplant is required for some of the organs.  But there are other physical issues as well.

Suzana Popovic-Montag: One of the things that it just sort of brings to mind, Ian, is the very first case that I worked on when I came to Hull & Hull, and that was actually what we morbidly call ‘the fight over the body’.  And it was a situation where I personally, as someone who hadn’t had a lot of experience in estates, was shocked to find that the executor can determine the funeral arrangements and that he or she can trump any of the family member’s wishes in that regard. So I know that that certainly surprises people even when I advise them in the course of meetings, as well. It’s a very powerful right that an executor really does have.

Ian Hull: So one of the things that we’re going to talk about is the financial steps, and we’ve got sort of a few bullet points at the end of this podcast we want to talk about.  But one of the things that sort of stems from that is the need…a lot of financial institutions require…is the need for the death certificate. And the death certificate can play actually an unusually important role in an estate administration at this early, urgent, immediate stage. For example, if you want to create some cash flow to pay some funeral bills and so on, often banks will require presentation of a death certificate and a copy of the Will, not probate, usually, for the payment of that, and also insurance companies. If you want to get the cash flowing on the insurance company side, a death certificate can be vital. So getting the death certificate again, is important. The funeral directors are usually careful about just handing out a death certificate to just anyone. They want to make sure you have jurisdiction to receive the death certificate.

Suzana Popovic-Montag: And that really is a particularly timely issue of consideration these days when we see a lot of talk about the impetus to really know your client, so to speak. And financial institutions are looking for validation of the fact that they’re dealing with someone who is authorized to speak on behalf of the estate, as are lawyers as well.  And so just being able to demonstrate that is a really key issue.

Ian Hull: Alright, so that’s some of the immediate, there are lots of other immediate issues that come to mind.  But let’s turn, so we have enough time in this podcast to sort of fit this all in, and talk about what would be, we would consider, the immediate financial issues.

Suzana Popovic-Montag: And I guess what you’re eluding to there, Ian, is just actually right from the get-go, stepping into the home of the deceased, their prior place of residence, and dealing with the issues right off the beginning. Like cancelling, for instance, deliveries of newspapers, subscriptions of papers, suggesting that a family or friend can stay at the home just to take care of the home in the meantime, removing and securing any valuables and putting them in safekeeping.

Ian Hull: And one of the things that I will do, I would tell my executor clients to do two other immediate steps as well with the house, and that is, (1) change the locks. It makes people crazy sometimes.  Obviously in certain circumstances this is not appropriate.  But remember you are charged with, like you are charged with the care and custody of the body, you are charged with care and custody of the property, and often, in a lot of estates, the main asset is the home. So, if you don’t take the basic steps like changing the locks, I think it can be problematic. 

And the other twist is, is that I encourage my executors to grab a video camera and walk through the house with the video camera to determine the assets and the chattels, I mean, in terms of what’s in the house with more certainty. And the final subtext of that is, of course, there are lots of houses such as Waddington’s and Sotheby’s and so on, that will come in and create a comprehensive inventory of each and every item in the house, with valuations, which can cost a little bit of money sometimes, but can be a very, very useful evidentiary tool as an executor and one that is too often overlooked at this immediate, urgent stage.

Suzana Popovic-Montag: Another thing that I think is really important right from the get-go is to make sure that any property owned by the deceased is properly insured including their home, their cottage, any other properties they might own, cars, other forms of vehicles and that. It’s very important to make sure that that insurance is in place and that it continues on properly.

Ian Hull: Okay, well I think those are sort of…obviously this is, we’re dealing with a very specific point in time in an estate administration and every estate administration has its own twists and turns.  But in preparing for this podcast, we sat down and tried to highlight some of what we find are matters that end up being contentious later and therefore, are helpful to be alerted to now. So if you have the job of executor, it seems to me, don’t forget that that job starts immediately; a lot of these steps are urgently required and once you get over that hump, an administration can be done in a timely but not as stressful environment.

Suzana Popovic-Montag: Well I think that brings us to the end of this podcast, Ian. It was great being back on Hull on Estates with you. I’d like to remind our listeners to again, please feel free to give us any feedback at 206-350-6636.

Ian Hull: And, of course, we look forward to hearing from you. An easy way to get to us is hullandhull.com, our webpage and that links you in to all of our blogs and podcasts.  But feel free to e-mail us at hull.lawyers@gmail.com.

Suzana Popovic-Montag: Thanks very much, Ian.

Ian Hull: Thanks, Suzana.

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.

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

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

/mem

Posted on June 12^th, 2008 by Hull & Hull LLP

David Smith: Hello and welcome to Hull on Estates. You’re listening to Episode No. 114, on Thursday, June 12^th, 2008.

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.

David Smith: Good afternoon, Rick.

Rick Bickhram: Good afternoon, Dave, how are you doing today?

David Smith: I’m doing well, Rick. Rick, today we thought we’d talk about same-sex relationships and in particular, we would talk about how the changing definition of marriage and the changing view of the Courts regarding same-sex relationships have impacted upon the practice of estate administration and estate litigation.

Rick Bickhram: And this is an interesting topic as it was not too long ago, as I understand, that the Courts, the provincial and federal legislatures both addressed the question.

David Smith: Well that’s right, and what’s happened is, we all know in Ontario that the Court of Appeal in Halpern established the validity of same- sex marriage and, of course, there was then the marriage reference to the Supreme Court of Canada by the Federal Government which has validated the view and the legislation to the effect that marriage is the lawful union of two persons, not a man and woman, but two persons, to the exclusion of all others. And from an estate perspective, this has an impact because as we know, Rick, marriage has a legal significance in the context of estates, doesn’t it?

Rick Bickhram: Absolutely. And the impact that it has on it, is pretty much relevant towards the different remedies that an individual, a spouse, may be entitled to. For instance, and we will go into more greater detail as this podcast goes along, but I will just touch on some topics that are relevant to the definition of a spouse, i.e., intestacy, dependent support claims, whether or not a Will is revocable by a marriage that has occurred between same sexes.

David Smith: That’s right, Rick, and you know marriage really means something when it comes to estates. There’s sort of a common notion out there, I think, to the man or woman on the street, that if they live together for a lengthy period of time that for all legal intents and purposes their relationship enjoys all of the benefits that a married relationship has the benefit of. And we know that that’s simply not the case. The big one is intestacy and let’s talk about that for a second. What happens on an intestacy, Rick, if a man and a woman are not married as opposed to being married?

Rick Bickhram: And that’s a good question, Dave. What it sounds like what you’re referring to here is a common-law relationship.  And the question is, what happens if two parties are common-law and unfortunately one of them dies? Is the other party entitled to something? Under the laws of intestacy, no, they are not! That’s the sweet and simple answer.

David Smith: And it’s pretty dramatic, isn’t it? And, you know, the Courts and some commentators have suggested that the fact that a common-law spouse is entitled to nothing on an intestacy gives rise to a Charter challenge on the basis that in some way, it offends the equality provisions of the Charter for an unmarried spouse to get nothing on an intestacy, but for a married spouse to get something on an intestacy. 

And you know, the Courts and the commentators, there was a case in the Supreme Court of Canada, Walsh, where the Court considered this. And basically the Courts say, “well you know, marriage does have to mean something. And if you have a benefit of being married which is that you take the other’s estate on an intestacy, which is a benefit you don’t get as a common-law relationship, well that’s something that it’s reasonable to expect the parties to understand and there’s nothing wrong with having a legal benefit associated with marriage”. The other point that’s interesting, is the Court said “you know, there’s an easy way for a common-law couple to provide for each other in the event that one of them dies, and that’s, of course, for one of them to make a will benefitting the other”. But in the absence of either of those options, Rick, they have a remedy in any event, don’t they?

Rick Bickhram: Absolutely.  And another remedy that they may consider is a dependant support claim against the estate and I’ll let you go into some detail there.

David Smith: Well you know, the dependant support claim, Rick, is a powerful tool under Part V of the Succession Law Reform Act and as a common-law spouse, that entitlement is available. But you know, coming back to the point that we’ve made and the subject matter of this podcast, that is now a remedy that’s available to same-sex couples who are not in a marriage scenario. And that actually has been the law for quite some time in Ontario, which is, if you’re a homosexual couple or a heterosexual couple who are not married, the reality is that either one of you has a right to make a support claim against the estate of the other, in the event that you’re not married.

Rick Bickhram: Now Dave, under the provisions of Part V of the SLRA, the magic words are ‘dependant’. Do they…under Part V of the SLRA, define what a spouse is?

David Smith: Well, absolutely, Rick. A spouse defined under Part V of the SLRA is anyone who has lived with someone in a cohabitation arrangement for three years or more, or for a period of less than three years if they have a child together. Now the Courts have liberally construed the three year period and cohabitation has also been fairly liberally construed. What essentially happens, Rick, is the Courts want to look for a situation in which there is a basis upon which these people meet the definition of dependency and it’s going to have to look like an arrangement that had some spousal indicators.  And, you know, three years is usually the bottom line minimum number.  But again, that three years doesn’t require that they necessarily live both under the same roof.  But, of course, it’s something that they can pursue. 

You know, Rick, I think too, with the amount of time we’ve got left we probably need to just move along and consider a few of the other situations in the estate context where marriage has some significance and where the same-sex revolution in the law really makes a difference. One of these, I guess as well, Rick, is the whole idea of electing to take under the Family Law Act.  Let’s just talk briefly about that. Is that a right that’s enjoyed by common-law spouses or is it only enjoyed by married spouses?

Rick Bickhram: Good question, Dave. And under the rules of the FLA, that remedy is only available to married spouses, not common-law spouses. However, there is the option for a same-sex couple who have been married to make that FLA election as well.

David Smith: Presumably, Rick, we’re going to see some of these coming down the pipe. I mean, the reality is that legal same-sex marriage is a relatively new phenomenon.  And, you know, in our practice, we just typically haven’t seen a lot of people exercising these entitlements, but that’s only because it’s a new phenomenon. And what’s going to happen is, over the passage of time, we are going to be seeing situations in which same-sex married couples have the opportunity to exercise these benefits available to everyone. And the bottom line is that marriage, as a legal relationship between a man and a woman, a man and a man, or a woman and a woman, is going to give rise to these entitlements under the FLA as long as there is a marriage. Again, it’s fairly critical.

Yes, there are some other sort of  more mundane issues relating to estate administration. One of them is the right to be appointed as the estate trustee. That’s a right that’s available to, you know, people in a more liberal definition of spouse. So you don’t have to be married to have the right to be appointed as estate trustee in priority to anybody else. Under the FLA there’s also a right to claim damages.  That’s now available to spouses as well.  And again, the whole framework has changed such that same-sex entitlement gives rise to this option.

One thing I wanted to talk about briefly, Rick, was the precursor to the marriage definition which was the decision of the case in M&H, and that’s where the Court said “you can’t give rights to opposite sex common-law spouses that you don’t also give to same-sex common-law spouses”.

Rick Bickhram: You’re absolutely right here, Dave. You cannot discriminate on the basis of sexual orientation.  And I think that was (a) the decision in M&H, and (b) following that decision, the pith and substance behind much of our legislation that has revolved around that decision.

David Smith: Right, Rick. So you know, it’s going to be really interesting in our practice to see this new development take shape and to see these kind of cases come into our offices as lawyers.  And, of course, it’s going to, the bottom line here is it’s making available entitlements and remedies to a greater percentage of the population and that can only be a good thing.

Rick Bickhram: Absolutely. As society evolves, so will our laws to adapt with it.

David Smith: Thanks, Rick.

Rick Bickhram: Thank you Dave, and for all those listening out there, have a great day.

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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