The Importance of Documenting a Settlement

by: , February 27, 2007

In the context of estate litigation, mediation, as well as pre-trial conferences, often leads to settlements.  The importance of carefully documenting a settlement should not be overlooked.  Where required, a Rule 7 motion (court approval of a settlement where a party is under a disability) will have the effect of forcing the parties to document…read more

When to Mediate

by: , February 27, 2007

I recently attended a client meeting where the issue of mediation was hotly debated.  My client expressed reluctance in participating in a process with a party that my client regarded as intransigent and obstinate.  My client also thought that proposing mediation would suggest to the other side that our case was weak and we were…read more

Choosing a Mediator

by: , February 27, 2007

Mediation is a common occurrence in estate litigation.  Mediation is also popular in other areas, including family law and even commercial litigation.  When choosing a mediator, I look for the following characteristics: Knowledgeable (has to know the law) Experienced at mediating (too many “wannabes”) Litigation savvy (knows the true costs and challenges of litigation) Empathetic…read more

The Doctrine of Abuse of Process

by: and , February 27, 2007

The Supreme Court of Canada had this to say about abuse of process: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way…read more

Assessing Testamentary Capacity

by: , February 27, 2007

An article was published in the American Journal of Psychiatry in May 2007 and can be found at  www.ajp.psychiatryonline.org. Among other things, the article considered the common cognitive screening tests used by the medical profession to assess testamentary capacity. By way of introduction, the article states: Clinicians and legal experts must understand that cognitive tests…read more

A Child’s Interest in the Family Cottage

by: , January 27, 2007

Recently, a client came to me regarding the purchase of a family cottage.  The client was obviously excited about his new purchase, and wanted advice as to whether he should include his minor children on title.  As his children would ultimately inherit the cottage, he thought it would be a good idea to include them…read more

When is an Investment Property a Matrimonial Home?

by: , January 1, 2007

In Debora v. Debora, the Ontario Court of Appeal confirmed that a property will be considered a matrimonial home even if it is owned by a company instead of directly by a spouse. The facts of the case make for interesting reading.  The parties went through a religious wedding ceremony in 1987, but did not…read more

When is a Loan a Gift?

by: , February 28, 2006

A father’s intention to gift his children a substantial amount of money and benefit a favoured charity at the same time, albeit indirectly, was at the centre of a recent case decided by the Tax Court of Canada.  The case in question is Benquesus v. Canada [2006] T.C.J. No. 149.  Gift giving has never been…read more