Written on behalf of NULaw

Written On A Napkin, A Will Leaves A Mess

Here at NuLaw we regularly help clients plan for their future through our estates and trusts practice. One of the key parts of planning for you and your family’s future is through the creation of a valid will that states how you want your state handled upon your death. Of course, not everyone gets around to creating a formal will. Holograph wills are those that are 100% handwritten and signed by the person writing it. In these cases, no witnesses are necessary. However, just because a holograph will can be accepted by a court does not necessarily mean it will be accepted by a court. A recent decision from Saskatchewan illustrates this.

Names on a napkin

The will was written on a very thin brown paper napkin that the deceased had in front of him while eating at a fast food restaurant. On it, he listed the names of his seven children followed by the phrase “split my property evenly.” He then signed the will. One of this children, who had predeceased the father, was left off the will. Another child named on the will died in the interim. All parties involved said they agreed the estates of the deceased children should receive a share of the estate.

Holographic wills

In Saskatchewan, much like in Ontario, a holograph will can be wholly written by the testator and signed by them without any other formality or witnessing. With that being the case, what was the issue here?

One of the children (“MG”) was shown the will after the testator died. Another sibling told her the father wrote it on a napkin at a fast food restaurant when he thought he may have been having a heart attack. He didn’t die that day, and went on to live another 10 years or so. MG is skeptical that the will is real, stating she has been unable to verify whether it is the father’s handwriting, having nothing to compare it to. She also pointed out that her name was spelled incorrectly on the will. She also said that the father told her in the year before his death that he would not leave a will because “he wanted us kids to fight like he had to.”

One of MG’s brothers, (“RL”) said he drove his father to the restaurant on the day he supposedly wrote the will, arranging someone else to drive him home. He said that someone with is father at that time was present when the will was written, though no evidence was put forward to support this.

Another sibling (“PL”) testified that his father gave the will to one of the siblings and said “This is my will and I want you to keep this in case something happens to me.”

Determining whether the will is valid

The court found that the deceased had the testamentary capacity to write a will, and that the evidence provided by the siblings in support of the will was enough to determine that it was valid and could be admitted for probate.

While the will in this case was accepted, it illustrates how difficult it can be to prove that a holograph will is valid. To avoid this kind of trouble, contact NULaw in Toronto to obtain effective legal guidance with all of your estate planning needs, including wills and powers of attorney. An experienced estate lawyer can help you achieve your long-term goals and objectives, and plan ahead to protect yourself and your loved ones. Contact us online or at 416-481-5604 to book a consultation today.

Decision Highlights Challenges Of Shared Custody During COVID-19

Parents looking to avoid some of the disruptions that comes with separation or divorce might turn to nesting arrangements, which see the children staying in a single home while the parents take turns living in it in accordance to a custody or access schedule. Precautions in light of the COVID-19 pandemic may have parents looking towards nesting arrangements when they haven’t before. A recent decision from the Ontario Superior Court of Justice addresses a mother’s request to enter into a nesting arrangement in order to limit the parties’ children’s risk in relation to COVID-19.

An urgent motion

The mother brought the motion on March 15, 2020 seeking exclusive possession of the matrimonial home, subject to the father’s parenting time. The proposal would see the mother and children living in the home for a 14-day period, after which the parents would take turns living in the home with the children.

At the time the motion was brought, the mother was living with the children in her parents’ home. However, they are older and she said her father “was beginning to experience respiratory issues” while both parents were experiencing other symptoms of COVID-19. She said she and the children have been “sequestered” in certain parts of her parents’ home, but that one of the children started to experience a severe cough.

The father was living in the matrimonial home by himself at the time the motion was brought. But the mother said he could live with his parents while she stayed in the home with the children.

The father’s position

The father objected to the mother’s request, arguing the mother and the children could continue to live comfortably at her parents’ house. He also said his own parents have health issues and he did not want to present unnecessary risk to them.  He stated he would like to have a case conference prior to a hearing of the motion, noting they can be scheduled during the pandemic. The court, however, was skeptical of the usefulness of a 30-minute case conference, finding the matter urgent enough to deal with.

Assessing the situation

The court agreed that it would not be appropriate to provide the mother with exclusive possession of the home for a 14-day period. However, the court did find it to be in the children’s best interest to live there. The court suggested the parties could work to live in the home together while keeping distance between each other. In the alternative, the court agreed that the father should not be made to live with his parents. If the mother wants to stop living with her parents but not under the same roof as the father, the court suggested she move into her own space with the children.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

Father’s Refusal To Discuss COVID-19 Parenting Leads To A Loss Of Access

The emergence of COVID-19 and the safety measures put in place to slow its spread has led to a huge change in the way people live their lives on a day-to-day basis. For parents who share access to their children, there may be a concern by one of the parents that the other is not following the safety protocols put in place as a result of COVID-19. A recent decision from the Ontario Superior Court of Justice looks at a situation where a mother was concerned the father of their child was failing to comply with such protocols.

The application

The parents have a child together who is currently three-years-old. At the time of the trial, they were involved in a high-conflict dispute involving several motions that were scheduled to be heard together as a long motion in April, though whether or not that happened is still unclear. In the meantime, the mother was worried that the father was not respecting COVID-19 safety protocols, and as a result, she wanted to prevent the father from having access to the child until a time to be determined in the future.

Leading up to the application

The parties’ parenting schedule was established by a court order issued in July 2019. It gave the mother primary access to the child, with the father entitled to access as set times. While the child was in the care of the father on March 11, 2020, the father sent the mother photographs of the child playing on a playground. She responded two days later expressing concern about COVID-19, asking the father to ensure he was being pro-active in safeguarding the child, mentioning that she had canceled a planned vacation. The mother noted that she was concerned because the father lived in a three-bedroom apartment with two others.

The father did not respond to the mother’s email, stating later that he didn’t think it was important to acknowledge what he already knew.

On March 14, the mother provided the father with a face mask for the child as well as hand sanitizer and disposable gloves. She said he showed little interest in the items, adding there was no public health rule or guideline pertaining to the use of face basks. She emailed him again on March 25, once again expressing concern about COVID-19, offering to work with him to develop an emergency action plan in the event the pandemic worsened and risked impacting his access to the child. Once again, he did not respond.

The mother sent another email on March 27, seeking reassurance that the father was respecting COVID-19 protocol. She mentioned she was self-isolating with other members of her family, and that if he continued to fail to respond to her messages, she would escalate the matter. He responded the next day, writing she had “mothering to teach (him) about COVID-19.”

The court’s analysis

Citing a recent decision, the court offered some context on how the courts are addressing issues like this during COVID-19, quoting,

“In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing. 

“In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).”

In this case, the court found it was clear that rather than working with the mother to come to an understanding of how they would parent during COVID-19, he refused to engage with her, meaning the child’s safety was not the priority it should have been. The court said that while there is no doubt he loves the child, the mother was being reasonable in attempting to talk with him about parenting during COVID-19. As a result, the mother was granted sole custody of the child until a time yet to be determined.

For more than half a century, NULaw and its predecessors have been known for excellence in providing legal services, strong advocacy, and client-focused services. We represent business owners & entrepreneursbusinessesfamilies, and individuals who want a personalized and practical approach to their matter. Contact NULaw online or at 416-481-5604 to book a consultation today.

Unnecessary Litigation Met With Criticism By Court In A COVID-19 World

Vexatious litigation is not something that is well-received by the courts at the best of times. However, during these days of COVID-19, unnecessary or frivolous litigation may be met with even more resistance than normal. As we’ve discussed in recent blog entries, Ontario’s courts are only hearing urgent matters. A recent decision from the Ontario Superior Court of Justice shows those looking to have the courts address non-urgent matters will be out of luck.

An urgent request

The decision states that the father initially brought motions on March 24, 2020. The father’s request included what was described as an urgent access matter as well as financial and property issues. The triage judge allowed the access matter to proceed but determined the financial and property issues were not urgent and did not allow them to proceed.

The father ignored the court’s direction and brought another emergency motion on financial issues just three days later. The same judge addressed this motion, noting the history both parties had of abusing the court process and stated once more that the financial matters were not urgent. The triage judge instructed the father to not bring any further motions on the property or financial issues without leave of the court. The judge added that no such request may be submitted within 60 days of a denied request.

Both parties ignore the court’s direction

The access issue was heard by another judge on March 27, where the judge denied the father’s request due to a lack of sufficient evidence on his part.

Despite the triage judge’s decision, the mother now filed another motion three days later, this time on March 30, 2020. Once again, the request included both financial and access issues. The same triage judge issued a decision on these applications and did not have much patience for the father. Both matters were denied by the judge. The financial issue was denied because it was in direct contravention of the March 27, 2020 decision. The access issue was denied because, as the triage judge noted, the issue should be something the parents can sort out without the need of the courts.

The triage judge left the parents with a stern warning about the possibility of being labeled vexatious litigants, writing,  

“We are rapidly approaching the stage where one or both of these parties may come to be identified as vexatious litigants.  The consequences of such a determination would be quite harsh.  For the moment, both parties should be aware that if they keep bringing inappropriate urgent motions, we may simply have no choice but to ignore them.

“I would again urge both parties to use some commen sense and stop abusing extremely limited judicial resources.”

For more than half a century, NULaw and its predecessors have been known for excellence in providing legal services, strong advocacy, and client-focused services. We represent business owners & entrepreneursbusinessesfamilies, and individuals who want a personalized and practical approach to their matter. Contact NULaw online or at 416-481-5604 to book a consultation today.

Behaviour During COVID-19 Continues To Impact Family Court Decisions

Since the outbreak of COVID-19 we have used our blog to share news on how the courts are operating as well as cases that illustrate these changes. The decision we will discuss today is from the Ontario Superior Court of Justice and serves as a good example of how the courts are treating urgent matters within the context of COVID-19. Like last week’s blog, the court considers one of the parent’s actions within the context of COVID-19 in helping to reach a decision.

Urgent hearing…by telephone

The judgment starts off stating that the hearing was conducted over the telephone, something unusual during normal times but standard today as the courts are largely shuttered following government directives. The court had determined that the matter, which related to the alleged unlawful withholding of two children fit the “urgency requirement” the courts are working under.

Another interesting statement made by the court relating to the urgency of the matter is that the respondent father did not have the opportunity to deliver a written response to the mother’s allegations. Instead, the judge listened to “his side of the story” over the telephone.

The relationship

The parties were never married but began living together in April 2012. They had two children together before separating in July 2019. However, even after the separation, the father lived in a rental property owned by the mother. She said that during this time the father would closely monitor her both physically and through her phone, also alleging that he had extorted money from her before with the promise that he would move out of the apartment in exchange for money. The mother also said she has always been the primary caregiver for the couple’s children.

Since the couple separated, the children have resided with the mother with the father having interim access to them in the presence of their nanny. This was agreed to by the parents.

Taking the children without consent

The mother alleged that on the week of March 13, 2020, the father returned from a trip to Brazil and told the mother he was going to take the children to his rental property for the week of March 15, which would have been their second week of spring break.

The mother had told the court that the children had fallen ill while in the care of the father. He confirmed that the children did have a fever. Despite this and the outbreak of COVID-19, he continued to take the children to public places.

The court’s decision

The court started off by noting it was in the children’s best interests to maintain the status quo and shield them from the impact of family litigation. Until the father took the children, that status quo meant they lived with the mother. The parents’ original agreed via text message that they would split access 50/50, but never actually put such an arrangement in place. The father said the reason he had not followed through on that arrangement was that the rental property wasn’t ready yet and that he was mourning the loss of a family pet. The court noted that his answer “seemed to lack an air of reality…”

The court found that the children’s status quo was unilaterally altered by the father’s actions and ordered them returned to the mother.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Lex Arbesman provides clients with clear, practical advice so that they can make informed decisions about their parental rights. Contact the firm online or at 416-481-5604 to book a consultation.

COVID-19 And Its Impact On Access

Over the last few weeks, we have been writing about how COVID-19 is impacting the judicial system in Ontario, including reduced operations with the exceptions of urgent matters. Today we’d like to take a look at a recently issued decision that serves to highlight how seriously the courts are taking COVID-19 and how it is impacting decisions related to custody.

Scrapping a nesting agreement in light of COVID-19

The decision was reported on by the Financial Post, which explained that the parties separated in August 2018 and entered into a “nesting” parenting arrangement in which the three children  (aged 11, 13, and 17) stayed in the family home and the parents took turns living there on a weekly rotation.

Once the COVID-19 crisis took root, the parties decided to both stay in the home and suspended their nesting arrangement.

Medical complications create concern

One of the factors that would come to impact the situation was health of the family. Two of the children suffer from asthma, while the mother is on long-term disability due to a myriad of issues, including lupus, Sjorgren’s syndrome, fibromyalgia, and asthma. As a result of these medical issues, she has a compromised immune system. The story reports that the mother was concerned that the father was not following the COVID-19 protocols recommended by health officials. She told the court he was not upfront with her about his whereabouts when he left the house and that he wasn’t honest about his handwashing.

The father said he was abiding by the protocols, even though he was spending time with his girlfriend, who he said was practicing social distancing.

The court weighs in

The mother brought a motion to have sole possession of the family home during the COVID-19 crisis. This would obviously have a significant impact on the parties’ parenting arrangement.

According to the story, the court agreed that the father’s behavior was problematic. The judge believed the mother’s statements about the father not taking physical distancing as seriously as he needed to, writing “this order is made due to the father not taking the increased risk to the mother and children seriously.”

The order is temporary in nature. The father will be able to bring the motion back before the court, but not until April 17 at the earliest.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

First Decisions Issued Following COVID-19 Court Closures

In last week’s blog, we discussed how Ontario’s courts have responded to the COVID-19 crisis, including family court only being open to hearing urgent matters. Decisions for some of these urgent matters are starting to be released, including the case we will be discussing today.

An urgent motion

The motion was brought by the father, who was seeking the immediate return of the parties’ son from the United States. The son, born in 2003, was attending school in Utah.

The parents share joint custody of the son as well as two other children pursuant to a separation agreement signed in 2004.

The motion was treated as urgent due to the unfolding of the COVID-19 crisis and concern that the Canada and United States border may be closed, preventing the son from returning to Canada at a later date.

Two stories

The father alleged that he and the mother worked out an arrangement the week before the trial, where the mother agreed to return the child to Canada subject to her being given sole decision-making authority on matters related to the child’s health and education. The father said he agreed “under protest and duress,” while the mother challenged it on the basis it was entered into without the benefit of independent legal advice. The court made note that even with the parents’ coming to an agreement, the child is 16-years-old and was entitled to participate in plans pertaining to his future.

A changing situation

The court noted that its analysis of the decision would be heavily impacted by the situation unfolding. In fact, in between the motion being filed and the case being heard, the closing of the border went from a possibility to a fact. Plans to close it were in pace.

The court turned, as we often see in these situations, to the best interests of the child. The court wrote,

“Given the current health concerns facing all of us, the imminent closure of the border between Canada and the United States and the recommendations of our health professionals and Government authorities regarding Canadian citizens out of the country, the relief requested by the applicant is granted in its entirety.”

In addition to granting the order sought by the father, the court also ordered the mother to return the child’s passport, which she had removed from his school. The court also ordered the child to self-quarantine for 14 days upon his return. During this time he was ordered to live with his father. The parents were ordered to work out an arrangement for his residential schedule following quarantine.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

How Ontario’s Courts Have Responded To COVID-19

There’s no doubt that the emergence and the response to COVID-19 has upended and shaken the lives of everyone in Ontario. Institutions that we rely on through our day-to-day lives, including courts, have either shut down completely or limited their services. Ontario’s courts are no exceptions. We wanted to take some time today to share the latest. Please be advised that the information presented below could change at any time. We encourage you to check in on the latest news directly if needed.

Most court matters have been adjourned

For the most part, if you have a matter before Ontario’s Superior Court of Justice, your court appearances will be postponed. The courts are closed for all criminal and family matters that are not urgent. People with previously scheduled appearances between now and May 29 have been asked not to attend, though the courts would like people to request an adjournment. Information on how to do so can be found here.

What matters are still being heard?

For family law the following urgent matters are still being heard on a prioritized basis:

  1. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
  2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
  3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
  4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings

Other are also being heard, include,

  • regularly scheduled bail courts, remand and plea courts for in-custody proceedings;
  • plea court for urgent out-of-custody matters;
  • applications under the Health Protection and Promotion Act; and
  • urgent and/or essential intake court functions.

What’s next?

The courts have indicated that they plan on developing some kind of plan to allow them to resume operations. The courts said, ““In the weeks ahead, the Court will finalize a plan to resume regular operations.  We anticipate the establishment of a Return to Operations (RO) Scheduling Court, where matters that have been adjourned will be rescheduled.  We will strongly encourage counsel and parties to consent to future hearing dates.  Should an appearance before the RO Scheduling Court be required, matters will likely be heard by teleconference.”

We will be sure to update our readers on any other developments are we become aware of them.

For more than half a century, NULaw and its predecessors have been known for excellence in providing legal services, strong advocacy, and client-focused services. We represent business owners & entrepreneursbusinessesfamilies, and individuals who want a personalized and practical approach to their matter. Contact NULaw online or at 416-481-5604 to book a consultation today.

Retirement And Spousal Support

Very few things last forever. When it comes to family law, spousal support following a separation or divorce might be in place for a long time, but parties involved should be aware of the impact that a major event such as retirement can have on spousal support obligations. A recent decision from the Ontario Court of Appeal demonstrates this.

The settlement and original trial

The husband and wife separated in 2012 after being married for about 25 years. By the time the trial rolled around, their three children were all adults and child support was no longer an issue. The parties were set to go to trial in 2015 when they settled the outstanding issues before them, including spousal support. The spousal support agreement, which was non-term limited, stated the husband would pay the wife $1,650 per month, and that either party could seek a change in spousal support based on material change, whether the change was “forseen or foreseeable, unforeseen or unforeseeable.”

Things went smoothly for a few years until the husband announced that he intended to retire, which he did on December 31, 2017 when he was 57-years old, doing so with a full pension. The wife had retired from her public service position in May of the same year. She also retired with a full pension.

During the original trial, the judge found that the husband’s retirement constituted a material change in circumstances. After then considering the means and needs of the parties, the judge determined that spousal support was no longer necessary.

On appeal

The wife appealed the trial judge’s decision, arguing that the husband’s retirement was early, voluntary, and unreasonable. Therefore, she said, it could not constitute a material change. The wife also took the position that the original consent order made no mention of retirement, which means it was exempt from consideration of material change. In fact, the wife said the husband had originally wanted to include retirement as something which would trigger a conclusion on spousal support, but that it never made it into the final agreement.

The court of appeal agreed with the trial judge, though, concluding that with the facts presented to her, the judge considered the evidence and applied the correct law in finding that retirement, and the drop in income that comes with it, constituted a material change.

The wife also argued that the trial judge erred in terminating support, and that collecting spousal support for just five years was insufficient compensation for her income disadvantages that she experienced after staying home with their children and working part-time. However, the court found no error in the trial judge’s consideration of the parties’ assets and incomes, The trial judge noted that the wife had found a new partner and that the financial benefits of doing so should be taken into account.

Ultimately, the decision is a good reminder that even if an agreement on spousal support does not call out retirement as an event which would trigger a stoppage of payment obligations, it still may serve as such.

Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.

Proving The Intention To Sever A Joint Tenancy

When two or more people own a property together and wish for the property to pass to the remaining owner(s) upon the death of one or more of the owners, they may purchase property under what is known as a joint tenancy. In such an arrangement the owners have equal rights and obligations to the property. But as relationships change, so to may a desire to maintain a joint tenancy. Meanwhile, a tenancy in common is a situation where two or more people might own property together, but when one of those people dies, their share of the property becomes part of their estate. A recent decision from the Ontario Superior Court of Justice looks at how joint tenancy can be revoked, and more particularly, how it might be done unilaterally.

Revoking a joint tenancy

The ways in which joint tenancy can be severed were established in a 2012 decision from Ontario’s Court of Appeal. The three ways, known as “the three rules” are as follows:

Rule 1:  unilaterally acting on one’s own share, such as selling or encumbering it;

Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and

Rule 3:  any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

The first two rules are fairly straight forward and clear. However, the third rule leaves things open to some ambiguity. In the case being discussed today, the parties agreed that it was the third rule which would apply if the joint tenancy was actually severed.

Inconsistencies with joint tenancy and the will

The husband and wife were married in 1999, though the husband had three children from a previous marriage. They purchased their home together, registering themselves as joint tenants. The husband passed away in 2015.

Upon the husband’s death, his will was read and was found to contain language stating the wife would be allowed the “use, occupation and enjoyment of my one-half interest” in the home. The 2012 decision from the Ontario Court of Appeal noted that a testamentary disposition as seen here is not enough to sever a joint tenancy. However, it can be used to help discern whether there existed a common intention (between the owners) to seer the joint tenancy. This is where the recording of the husband and wife comes into play.

The recording

A recording that was said to have taken place (according to a sworn affidavit) between the husband and wife with the children present (though that was in question). In the recording, the wife is heard saying that she understands that the husband’s share of the house will go to his children upon his death.

In addition to this, the court also heard evidence that a friend of the husband told her of the intent to leave his half of the home to his children. The wife and one of the children were present during this conversation.

The court found that looking at the evidence as a whole, it was clear that there was a common intention to sever the joint tenancy. The will alone would not have been enough to do so, but the addition of the recording and the evidence of the conversation with the friend combined top provide sufficient evidence.

If you are thinking about challenging the will of a family member or friend, the results-oriented, effective estate lawyers at NULAW in Toronto can help. Contact us online or at 416-481-5604 before you take any action. We will help you navigate your options and formulate a pragmatic game-plan for moving forward.