Medical Assistance in Dying (MAID) – Still Controversial

by: , August 28, 2020

In Canada, MAID has now been legal since June 2016 when the Parliament of Canada passed federal legislation that allowed eligible Canadian adults to request medical assistance in dying. However, the issue is by no means settled and the courts have been frequently called upon to referee MAID’s implementation and application. By way of background,…read more

Who makes decisions for me if I become incapable and have not made plans?

by: , April 29, 2020

Before COVID-19, many of us had earmarked 2020 as the year we would get our affairs in order, including preparing powers of attorney for personal care and property. Unfortunately we may have not gotten around to it.  The pandemic has accelerated discussions about intubation, CPR and end of life care.  Additionally, many people, especially those…read more

The Revival of Unconscionable Procurement

by: , April 8, 2020

The administrations of some estates simply do not move forward smoothly. The Elias Gefen estate is one such estate. In Gefen v. Gaertner, 2019 ONSC 6015, Justice Kimmel addressed multiple issues which had stopped the administration from moving forward, ranging from mutual wills to secret trust agreements. Justice Kimmel also applied, for the first time…read more

The LCO Takes on Dispute Resolution and Legal Capacity

by: , February 27, 2020

Ontario’s current legislative regime defining legal capacity and setting the rules for substitute decision-making and guardianship took shape in the late 1980s and early 1990s. Since then, significant demographic, legal, and social changes rendered the existing system inaccessible to all but a few. In their March 2017 final report on Legal Capacity, Decision-making and Guardianship…read more

Let’s Talk About Court Ordered Capacity Assessments

by: , August 10, 2018

Can one’s capacity be assessed against their will? The recent Ontario Superior Court of Justice decision in Erlich v. Erlich, 2018 ONSC 2911 sets out a useful overview for how and under what circumstances a court may order a person to undergo a capacity assessment, be they willing or otherwise. Background Robert Erlich (“Robert”) is…read more

40oz. to Testamentary Freedom

by: , July 13, 2018

Is the fact that one is a chronic alcoholic enough to deprive them of their testamentary freedom? In Dujardin v. Dujardin, 2018 ONCA 597, the Court of Appeal for Ontario explored this issue when it was tasked with determining the validity of two wills that were executed by a known drunkard. Background Jacques Henry Dujardin…read more

Ere the Son Rises

by: , June 1, 2018

Ere the Son Rises What is an adult child to do when his or her parent is no longer capable of managing their property? They may, for one, consider applying to the Ontario Superior Court of Justice for the appointment of a Guardian of Property. In Ballinger v. Marshall, 2018 ONSC 3020 (CanLII), a devoted…read more

I Hate to be a Suspicious Aloysius on You – but Did the Deceased Have Testamentary Capacity?

by: , January 26, 2018

A recent Ontario Court of Appeal decision (Stekar v. Wilcox[1]) reinforces what is required to prove well-established grounds for challenging a will: suspicious circumstance and testamentary capacity. Background Jerald P. McNamara (the “Deceased”) died on June 18, 2012. His friend of over 40 years, Thomas, stood to inherit his entire estate under the terms of…read more

Home? Or a Retirement Home? The Court Must Decide

by: , April 19, 2016

An elderly woman suffers from dementia. Her two children are both her attorneys for property and personal care. Both have diametrically opposed plans for where she would live. In Walter Burnat v Mary Bosworth et al, 2016 ONSC 2607 (S.C.J.) the court had to decide whether the mother – Olga – would continue to live…read more

Nova Scotia repeals “habitual drunkard” law

by: , May 29, 2015

Until earlier this month, Nova Scotia had a statute on the books called the Inebriates’ Guardianship Act, R.S.N.S. 1989, c. 227 which allowed for the court to appoint a guardian over a “habitual drunkard”. While Nova Scotia has other statutes which allow the Court to appoint a guardian for a person found to be incapable,…read more