Family Law Act Elections – The Importance of Punctuality and Proper Form

Posted on February 21, 2012 by Amy Cull

One of the ways in which a surviving spouse can ensure that they are adequately financially protected after the demise of their spouse is by making a ‘Family Law Act Election,’ pursuant to subsection 5(2) of the Family Law Act1 (the “FLA”). Essentially, a FLA Election provides a surviving spouse with the right to file an election and bring an application against the estate of their deceased spouse so as to elect in favour of equalization of the couples’ net family property (“NFP”) and forego their entitlement, if any, under the deceased’s will and/or on an intestacy, if there is no will.2

Although making an election is an important decision that should be the product of extensive legal advice and careful consideration on the part of the surviving spouse, counsel and client alike must also be mindful of the deadlines to make such an election, and the procedure involved. Failing to meet the requirements of time and form, can otherwise have harsh results and substantially reduce or, in some cases, completely diminish any entitlement a surviving spouse would otherwise have by way of election.

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Paper: Consent and Capacity Issues in Estate Planning and Litigation, OBA Institue 2012

Posted on February 21, 2012 by Ameena Sultan

Ameena Sultan and Lonny Rosen of Rosen Sunshine LLP presented a paper “Consent and Capacity Issues in Estate Planning and Litigation” at the Ontario Bar Association INSTITUTE 2012 TRUSTS AND ESTATES LAW, on February 9, 2012, at the Westin Harbour Castle Conference Center in Toronto

Click to download Ameena and Lonny’s paper “Consent and Capacity Issues in Estate Planning and Litigation” (PDF, 35 pages)

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Paper: The Capacity to Marry and Divorce, OBA Institute 2012

Posted on February 21, 2012 by Kimberly A. Whaley

Kimberly A. Whaley presented her paper “THE CAPACITY TO MARRY AND DIVORCE” at the Ontario Bar Association INSTITUTE 2012 TRUSTS AND ESTATES LAW, on February 9, 2012, at the Westin Harbour Castle Conference Center in Toronto in a Continuing Professional Development Program: “The Challenges Posed by the Issue of Capacity: The Impact Upon Estate Planning, Estate Administration and Estate Litigation”. This program was chaired by Edwin Upenieks and Melanie Yach.

Click to download Kimberly’s paper “The Capacity to Marry and Dviorce” (PDF, 31 pages)

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Book Release: Key Developments in Estates and Trusts Law in Ontario, 2011 Edition

Posted on February 21, 2012 by Whaley Estate Litigation

The 2011 Edition of Carswell’s “Key Developments in Estates and Trusts Law in Ontario” is soon to be published. Kimberly A. Whaley and Amy Cull contribute a chapter on Passing of Accounts

Click to link to Order Page on Carswell site

Brief description from Carswell:

This publication brings together a team of 17 leading practitioners to provide insight into the noteworthy developments in their areas of expertise. From personal trusts and post-Kerr property claims to solicitor’s negligence, the 2011 edition covers the issues that are affecting estate planners and litigators today. Get the big picture of the key decisions affecting your practice and clients in estate proceedings – now and in the future – with Key Developments in Estates and Trusts Law in Ontario, 2011 Edition.

Chapters include:
• A View from the Bench by The Honourable Justice David M. Brown
• Personal Trusts by Susan Slattery
• Taxation of Trusts and Estates by Paul J. Gibney and Mark A. Barbour
• Insurance, RRSPs and RRIFs by Robin Goodman
• Powers of Attorney by M. Jasmine Sweatman
• Family Law Issues in Estate Litigation by Martha McCarthy and Heather Hansen
• Passing of Accounts by Kimberly A. Whaley and Amy Cull
• Contracting Out of Dependants’ Support Obligations by Corina S. Weigl and Jonathan F. Lancaster
• Will Challenges by Ian M. Hull and Suzana Popovic-Montag
• Claims By or Against an Estate by Melanie A. Yach and Marni Pernica
• Guardianship of Property for Minors by Elizabeth Seo, P. Ann Lalonde and Linda Waxman
• Costs in Estate Litigation by Susan A. Easterbrook
• Solicitor’s Liability by Archie J. Rabinowitz

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Revised Paper: “Fiduciary Accounts and Court Passings”

Posted on February 9, 2012 by Kimberly A. Whaley

Kimberly Whaley updates her January 2008 paper entitled “The Passing of Fiduciary Accounts”. The updated paper as of January 2012 is renamed “Fiduciary Accounts and Court Passings”.

Click here to download the updated paper in PDF format (98 pages)

The preparation of fiduciary accounts requires particular expertise. It is important that qualified professionals prepare accounts in proper Court Passing Format and file in accordance with the Rules of Civil Procedure. In this regard, Whaley Estate Litigation has often used the services of Avi Dahary of AccountTrust.

Click to view Avi Dahary Profile
Click to visit accountrust.ca

We have also recently used the services of Carla Preece whose experience is in financial and investment matters. Carla Preece is available to prepare Estate accounts in the format required by the Courts for the formal passing of accounts. She has been retained in this capacity by banks, by lawyers on behalf of their clients and by clients themselves. Carla can be reached by email at: cmpreece@sympatico.ca or by phone at: 905-727-6861.

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CTV’s W5 Reports on End of Life Treatment and the Law

Posted on February 9, 2012 by Ameena Sultan

On February 4, 2012, W5 aired a program “Life or death – who gets to decide?” addressing the topic of end-of-life decision-making and the law.

Two cases are profiled in the program. The first case is that of Douglas DeGuerre whose physicians stopped all treatment despite differing directions from Mr. DeGuerre’s daughter and substitute decision maker Joy Wawrzyniak. Mr. DeGuerre died suddenly following the physicians’ decision to cease treatment. Ms. Wawrzyniak has commenced civil proceedings against Sunnybrook Health Sciences Centre for their failure to act in accordance with her consent and directions.

The program also profiles the case of Hassan Rasouli. Mr. Rasouli’s physicians sought to remove him from a ventilator and place him on palliative care. When Mr. Rasouli’s wife and substitute decision maker Parichehr Salasel declined to consent to the proposed treatment plan, the attending physicians declined to bring an application to the Consent and Capacity Board as provided under the Health Care Consent Act, 1996 and instead proceeded to the Superior Court of Justice. The Court ordered the physicians to bring the matter to the Consent and Capacity Board for review. The physicians appealed the order of the Court to the Court of Appeal for Ontario which dismissed the appeal. The Supreme Court has granted leave for the physicians’ appeal of the Court of Appeal decision. The Supreme Court will be asked to consider the law on end-of-life decision-making including the Health Care Consent Act and the role that substitute decision-makers and physicians play in the decision to continue or withdraw treatment.

Click here to see the W5 program, “Life or death – who gets to decide?”

Click here to view our previous blog entries on the case of Rasouli v. Sunnybrook Health Sciences Centre.

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