Amy Cull

Estate Claims for Proprietary Estoppel: Spadafora v. Gabriele

Posted on March 6, 2012 by Amy Cull

The doctrine of proprietary estoppel is one which is geared to protect an individual who has relied, to his or her detriment, on the action (or inaction) of a property owner that caused them to believe that they are or would be the true owner of certain property to such an extent that it would be unjust to permit the owner to later turn around and assert his title.1

The law of proprietary estoppel is well settled and was recently confirmed in the recent Ontario case of Spadafora v. Gabriele.2

The facts of Spadafora v. Gabriele are as follows. In 2004, Guiseppina Gabriele (the “Deceased”) and her husband convinced the Deceased’s mother, Mariannina Pulla (“Mariannina”), to live with them. At the time, Mariannina was living in her own home. However, the Deceased and her husband promised Mariannina that if she moved in with them, she could live with them in their new home until she died. Relying on this promise, Mariannina gave her daughter and son-in-law her home, which was later sold, and moved with the couple into their newly-purchased home located at 246 Sylvadene Parkway (the “House”).

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Breaking the Bonds that Bind: The Need to Reform the Bonding Requirements in Ontario’s Estates Act

Posted on February 29, 2012 by Amy Cull

In April of 2010, the Ontario Bar Association (“OBA”) substantially endorsed the adoption of the recommendations made some 20 years ago by the Ontario Law Reform Commission (“OLRC”) to modernize the bonding requirements set out in Ontario’s Estates Act (the “Estates Act”).1 The OLRC’s recommendations were set out in its Report on Administration of Estates of Deceased Persons on March 12, 1991.2

Among the issues that the Law Reform Commission and the OBA seeks to address is the difficulty (and consequent cost) associated with applying to the court to dispense with a bond—since it is a process that involves the preparation of an affidavit and the gathering of considerable evidence, including consents, etc. Another problem is the difficulty that non-resident applicants face trying to obtain a bond—one of the challenges being that few, if any, insurance companies issue bonds to residents outside of Canada or the United States.

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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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CARP’S Controversial Poll Report on End of Life Decisions and Elder Abuse

Posted on January 10, 2012 by Amy Cull

For those who have not heard of “CARP,” CARP is a Canadian non-profit organization self-avowedly committed to promoting and protecting the interests, rights and quality of life for aging Canadians. It offers a number of programs and services, geared primarily at seniors. More information can be found online at: http://www.carp.ca/about-carp/.

CARP recently released a somewhat controversial report, entitled “End Of Life/Elder Abuse Poll Report.”1 As its title indicates, the Report is focused on two main issues: autonomous end of life decision-making and elder abuse.

Controversially, in a survey conducted of CARP members, it was found that, both this year and last, seven-in-ten members agree with legalized physician-assisted suicide for the terminally ill, a position that remains steadfast in spite of whether or not Canada has an effective, comprehensive and compassionate system of palliative and end of life care.2

According to a summary of the report prepared by CARP,3 members are in agreement that both patient and doctor should together make the decision about physician-assisted suicide, however, they expect it to be, on average, almost a decade before the procedure is legal in Canada. That said, at least one half of the group surveyed agreed that there might be less interest in legalized physician-assisted suicide if palliative and end of life care in Canada were better.

On the issue of elder abuse, CARP noted with concern the fact that cases of elder abuse may be severely underreported. CARP noted that, in most cases, the abuse is financial. However, verbal elder abuse is also prominent. And, unfortunately, in more cases than not, the perpetrator is someone close to the victim, and tends to be a family member.

According to CARP, solutions to elder financial abuse would include the following:

  • Stiffer penalties for fraud;
  • Adding age as an exacerbating factor in sentencing;
  • The development of a national hot line to report suspicious pitches to police;
  • The development of a national home care strategy;
  • The development of special investigator/prosecutor teams; and
  • More public awareness of the problem.

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1. http://www.carp.ca/wp-content/uploads/2011/12/End-Of-Life-Report.pdf
2. and 3. http://www.carp.ca/2011/12/21/end-of-lifeelder-abuse-poll-report/

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B.C. Blazes the Trail in Family Law Reform

Posted on January 10, 2012 by Amy Cull

On November 24, 2011, B.C.’s Bill 16 1 received royal assent. The Bill radically replaces B.C.’s existing Family Relations Act 2, an antiquated piece of legislation last updated in 1978.

Sweeping changes to B.C.’s family law will result from the enactment of its new Family Law Act. The major amendments applicable to power of attorney/estate planning/litigation include the fact that the Act will allow planning for a parent’s death by way of the appointment of a testamentary guardian, provided certain conditions are met. The Act also permits the appointment of a standby guardian, in certain situations where a parent is facing terminal illness or incapacity. The new legislation will also provide clarification to pension division after marriage breakdown.

Arguably, the most radical and controversial reform will be the fact that common law spouses will now receive the same rights to property division as married spouses upon the breakdown of the relationship (subject to certain exceptions such as property gifted, inherited or owned prior to marriage). This is radically different from the law in other provinces, such as Ontario, where only married spouses are entitled access to/reliance upon the family property/matrimonial property provisions of the provincial Family Law Act. This is also a drastic change to the law since the Supreme Court of Canada ruled in the B.C. case of Nova Scotia (Attorney General) v. Walsh 3 that common law spouses ought not to have the same property law rights as married spouses, a decision predicated on the presumed ‘choice’ that common law spouses make to not marry and, therefore, to not participate in family law-mandated property division upon marriage breakdown.

Given that couples in B.C. need only live together continuously in a marriage-like relationship for a period of two (2) years before they are considered “spouses” within the meaning of the Act and, therefore, able to obtain marriage-like property division upon relationship breakdown, there will no doubt be an increase in the number of cohabitation agreements being signed prior to such relationships being entered into. The nature and types of claims brought by surviving spouses after the death of an unmarried cohabiting spouse are likely to change as well, such that reliance on equitable remedies such as constructive trust may decline. The implications of this amendment alone are potentially vast and, as such, it will be interesting to see how the jurisprudence unfolds on this particular issue.

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1. http://www.leg.bc.ca/39th4th/1st_read/gov16-1.htm
2. [RSBC 1996] CHAPTER 128, http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96128_01
3. [2002] 4 S.C.R. 325, 2002 SCC 83, http://scc.lexum.org/en/2002/2002scc83/2002scc83.html

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Re D’Angelo Estate

Posted on November 30, 2011 by Amy Cull

For several years now, Ontario’s Law Reform Commission and the Ontario Bar Association’s Trusts and Estates Section has put to the Ministry of the Attorney General a proposal to modernize the bonding requirements set out in Ontario’s Estates Act. Among the issues that the Law Reform Commission and the OBA has sought to address was the difficulty that non-resident applicants face, firstly, with trying to obtain a bond—the challenge being that few, if any, insurance companies issue bonds to residents outside Canada or the United States, and, secondly, the challenge and cost associated with applying to the court to dispense with a bond—since it is a process that involves the gathering of considerable evidence, other materials, and consents, etc.

I am not clear what the status of the proposal is, although a review of the Estates Act would suggest that no such amendments have been made as yet.

Although not a recent decision (and, admittedly it is difficult to find fresh cases in the rarified world of bonding), the decision of the Honourable Mr. Justice J.W. Quinn in Re D’Angelo Estate1, decided in December of 2010, is an interesting one, in that it attempts to provide a judicial solution to a legislative problem, and perhaps underscores the need for legislative reform in this area.

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