Wagner Sidlofsky LLP

Many Orthodox Jews involved in commerce face a challenge in complying with the Biblical prohibition against charging interest. Recognizing the problem the Rabbis created a legal document recharacterizing the "loan" as a commercial agreement & lender as an investor and the interest as shared profit. This agreement is called the Heter Iska. Given the different rights that flow from a loan the author poses the question -is there a litigation risk to a lender who signs a Heter Iska?

Car accident victims suffering from a catastrophic injury often cannot conduct their own affairs. If there is no power of attorney Court’s must approve both of the person being appointed as Guardian & the management plans. Any settlement agreement with the insurance company must also be approved by the court. To that point the system in Ontario effectively protects the best interests of the incapable person. The question is – what about afterwards?

Arguably, Ontario's Court of Appeal decision, Ferrara v. Lorenzetti Wolfe Barristers & Solicitors [FN i], profoundly changed the law regarding limitation periods. In Ontario claims have to be started before the second anniversary on which the claim is discovered. Some say Ferrara stands for the proposition that a claim is not discovered when an unsophisticated litigant reasonably relies on the lack of advice given by his lawyers that such a claim can be made.

In Canada capacity is often the key issue in challenges to testamentary documents, powers of attorney, the ability to manage property and/or personal care, gifts & even marriage. In Ontario, the test differs in accordance with the complexity of the document or the specific act under review. The author spoke recently at a continuing legal education programs sponsored by the Law Society of Upper Canada and provided an overview of the topic. This article is related to that presentation.

The legislatures, courts and Law Reform Committees in Canada have provided different policy reasons to justify strict compliance with the formalities of execution.Section 4(1)(a) of the Succession Law Reform Act is clear and unambiguous. A will is not valid unless there is strict compliance with the formalities of execution. Nonetheless, uncertainty exists because several Ontario cases suggest the Courts may dispense with the strict compliance.

Spouses & children who are disinherited often commence applications for dependant’s relief under Part V of the Succession Law Reform Act. Even if a party qualifies as a dependant, it is important to ensure that there are sufficient assets in the estate to fund support. To that end, section 72 of the Succession Law Reform Act includes assets which ordinarily are excluded in order to fund that support. One such asset is a “gift mortis causa”.

The recent British Colombia Supreme Court case of Borkenhagen v. Kessler (FN 1). It is a worthwhile read for those interested in area of estates and trusts because it reviews the basic tenets of resulting and constructive trusts. “I don’t care who paid for the property – it’s in my name.” But that’s the middle of the story – let’s start at the beginning.

When deciding whether to remove executors, Ontario courts focus on the best interests of the beneficiaries & the future administration of the estate. For judges, removing executors is about protecting beneficiaries & not about punishing someone for past misdeeds. In our experience, when families argue over which beneficiary should be executor the court’s default position is to appoint a neutral estate trustee.

For parties with assets and or beneficiaries in multiple jurisdictions it is imperative to ensure a proper estate plan is in place. Unless proper steps were taken in estate planning there could be adverse tax consequences that could have otherwise been planned for and perhaps avoided to achieve the testator’s goals. This article examines the consequences of failing to make such a plan where the deceased resided in both Israel and Canada with beneficiaries and assets in both jurisdictions.

As Shia Muslims, Mr. Rasouli’s family believed that as long as a person was alive everything should be done to prevent death. Accordingly, they opposed the doctors’ plan to withdraw the mechanical ventilation. This case was first heard by Madam Justice Himel of the Ontario Superior Court of Justice. It was appealed to the Ontario Court of Appeal. Now leave is being sought to have the matter heard by the Supreme Court of Canada. Thus far, the courts have sided with Mr. Rasouli’s family.

In Canada, the law balances the idea of testamentary independence against public policy concerns. Two British Columbia courts have ruled that in today’s society, homosexuality is not a factor that would justify a judicious parent disinheriting or limiting benefits to a child. To date, this issue has not been addressed in Ontario's courts.

Mary, her husband Franco and their children lived on a farm owned by Mary’s mother in law. Franco died & his mother sold the farm & gave Mary and her children got nothing. Mary sought compensation for her husband's work on the farm arguing that even without a legally enforceable contract the estate deserved compensation. This article examines how the Ontario Court of Appeal treated her equitable claim.

Sometimes Canadian courts will use equitable remedies, like proprietary estoppel, to address a situation where the application of strict legal rights would be unfair. Under these circumstances the court may ignore a contract or a testamentary document and provide the plaintiff with a remedy. By applying equitable principals courts will sometimes enforce promises.

Mr. Sidlofsky argued that fraud resulted in our client having a property interest in the remaining loan proceeds by way of constructive trust. Deloite & Touche again argued that even if there was a fraudulent misrepresentation that induced our client to loan money to Credifinance, it would not allow our client to bypass the strict requirements of the Bankruptcy and Insolvency Act. The Ontario Court of Appeal agreed with Mr. Sidlofsky.

Under the the common law and Ontario statute and regulations the attorney for property has a absolute strict duty keep accounts of all transactions involving the property of the grantor of the Power of attorney. Justice Strathy, in his judgment, addresses what happens when the attorney fails to keep proper accounts. In this case, the Attorney lost all rights to compensation, he had to return money wrongfully taken from the grantor and ended up personally paying the legals fees on the other side.

Moe Maraachli and Sana Nader's recent dispute with a hospital over the fate of their terminally ill child highlights a debate over end of life issues. The author reviews an Ontario case to highlight how Ontario has dealt with the tension of a patient’s right to consent to treatment and a doctor's right to advocate for what he/she feels are in the best interests of the patient.

DNA testing is growing in importance in Ontario estate litigation cases. In his analysis of Proulx v. Kelly the author describes how the biological connection impacts on rights in an intestacy and the statutory presumptions of parenthood on Ontario.

The author reviews the factors taken into account when Canadian courts decide if a non compete restrictive covenant is valid. Canadian courts ask if the restrictive covenant is ambiguous. Is it unreasonable? In determining the unreasonableness of the prohibition to compete Ontario courts look at the geographic coverage of the restriction, the activity being restricted and how long the ex employee is forbidden to compete.

This article addresses a situation where Americans involved in Ontario law suits may have to travel to Canada to be deposed. Ontario's regulations provide for the court to use its discretion in determining the manner and place of the deposition. The author uses a fictional scenario to demonstrate the issues canvased by the court and reviews relevant Canadian case law.

In Ontario, the courts differentiate between equitable and legal remedies. A litigant may obtain an equitable remedy at the court's discretion while a legal remedy is granted to the litigant by way of right. The article addresses the question as to whether Ontario courts will exercise their equitable discretion if party seeking the equitable remedy has come to court without clean hands.

In Ontario, businesses are incorporated for many reasons including shielding its shareholders from personal liabilities. The Ontario Business Corporations Act's oppression remedy is one way in which debtors may pierce the corporate veil. This article discusses another difficulty for shareholders. Canadian courts have found shareholders' personally liable when said shareholder failed to "bring home" to the debtor that he is negotiating on behalf of his corporation.

Ontario courts order security for costs to protect local defendants from foreign litigants who launch frivolous or vexatious claims and do not have the money to cover a potential cost award against them. Foreign plaintiffs may have assets outside of Ontario and possibly defeat a security for costs motion if his assets are accessible to satisfy a judgment because of reciprocal enforcement legislation.

In British Columbia disinherited adult children have a strong claim against a parent's estate based on their moral entitlement to an inheritance. Tataryn was the seminal case in British Columbia. The importance of adult children dependent's moral claim in Tataryn was adopted by the Ontario Court of Appeal. But there is no clear court decision in Ontario suggesting that the moral claims of non dependent children are legally enforceable in Ontario.

In Ontario section 33 of the Marriage Act suggests that the person who breaks up an engagement is irrelevant to a court's determination about who should get the ring. Notwithstanding the legislation, the common law apparently continues to penalize the person who broke off the engagement. The author reviews the law and canvasses some of the academic responses to the law.

The author reviews Ontario’s laws of inheritance in the context of second marriages. He addresses the risk to implementing a person's testamentary intentions. For example, in Ontario, under certain circumstances a new marriage revokes previous wills, the failure to provide full and frank disclosure may invalidate a domestic contract and a court may still order a deceased’s estate to pay support to a dependant regardless of any agreement made to the contrary.

In Ontario there has been a number of court cases recently dealing with mistakes in the drafting of wills. The equitable remedy sought by litigants is "Rectification". The courts are debated how sure does the judges have to be to fix the mistake? Is the court limited in how it can fix the mistake? In exercising the remedy is the court limited to just deleting certain parts of the will? Can they add missing words? The author's review addresses how rectification has been dealt with in Ontario.

In Ontario Canada there is a current of cases in the Family Law and Estate Litigation context that suggest that a mistress may be considered a common law spouse under certain circumstances. If that is true, then when her/his paramour passes away the mistress may be able to seek support from the Estate under Part V of Ontario's Succession Law Reform Act. This is despite the fact that the deceased still may be legally married to another person.

There are people who pretend to be lawyers and use the Internet to scam the naive and inexperienced. Others pretend to be clients and use unsuspecting lawyers as pawns in fraudulent schemes. These financial predators promise money or business opportunity.

The author compares courts' views of Public Policy in Illinois and the Province of Ontario with respect to testamentary documents disinherting someone for marrying outside the faith. In Illinois, the Court upheld the Disinheritence Clause because they placed a premium on the right of individuals to decide what happens to their assets after they die. In Ontario, a judge in obiter, thought such a clause was void on account of public policy.

In Ontario, Canada an adverse inference may be drawn if the trustee/ power of attorney/ executor fails to retain receipts supporting substantial cash withdrawals or expenses and be held personally liable for the unsubstantiated withdrawals

This article addresses the risks to Israelis being sued in Ontario, Canada. Sometimes there is a tendency for Israeli defendants to ignore Ontario lawsuits. Perhaps they feel judgment proof because they have no assets in Canada. That may be unwise. Ontario may assume jurisdiction and grant judgments against Israeli defendants. Such judgments may be enforceable in Israel leaving the defendant's assets in Israel vulnerable to collection.

This article addresses the risks to Americans being sued in Ontario, Canada. Sometimes these defendants ignore Ontario law suits because they have no assets in Canada. That may be unwise. Ontario may assume jurisdiction and grant judgments against American defendants. Such judgments may be enforceable in the US.

The author canvasses what questions should be asked when reviewing how an attorney for property has managed accounts. In the context of estate and trust litigation in Ontario Canada the author addresses the most common problems with accounts including whether they are in proper court format, if assets are missing, the location of joint assets, vouchers and the amount of compensation claimed.

Clients seek out lawyers who will take on cases on a contingency fee basis. The author discusses the factors that both the client and lawyer should consider before choosing this payment scheme and the legislative and statutory governance of this practice in Ontario, Canada.

Executors in Toronto often want to buy assets belonging to an estate. Beneficiaries often suspect the executors of wrong doing. The short answer is maybe, possibly, but not usually.

It is important for people who wish to stop estate assets from being distributed to know that a certificate of appointment (“Probate") is not always necessary to effect the transfer of assets.

Probate in Ontario is called "a certificate of appointment of estate trustee with a will". This article addresses what steps have to be taken in Ontario to stop the process of getting a Will probated.

Elderly people who are lonley, depressed, ill and cognitively impaired are especially vulnerable to financial predators who marry them as part of a plan to obtain control and ownership of their assets. This article is a review of an Ontario case called Banton v. Banton in which Justice Cullity of the Superior Court of Ontario, Canada dealt with such a situation, set aside the Will and addressed the differing capacities for making a Will and getting married.

There may be as many as 150,000 seniors being victimized in Ontario Canada.(FN1) The abuse can take many forms. One common form of abuse is financial. The purpose behind this article is to provide some information to people on the first steps they might consider when discovering the problem. Let’s first talk about signs of financial elder abuse.

Why is filing a Notice of Objection so important? Once filed, the court registrar will not issue a certificate of appointment (Probate) without notice to the Objector. Probate tells the world that the Will is valid & the executor is in charge of the assets. There is a risk that when granted Probate, the executor can sell the assets or remove out of the jurisdiction and thereby make collection difficult.

Ontario revised its Rules of Civil Procedure to make the civil justice system more accessible and affordable for Ontarians. The changes touched on: * Discovery * Pre-Trials * Simplified Procedure * Experts *Service Filing Deadlines * Case Management * Summary Judgment * Dismissal & Status Hearings. This article does not cover every change to the Rules of Civil Procedure. It covers two aspects of the changes which are of heightened interest to the public at large.

Obtaining a copy of the Will is the first step. Whether the matter involves finding out if beneficiaries were treated fairly or if there are concerns relating to the validity of a will. The most frequently asked question by a concerned party is "how do I get a copy of the Will?" This article deals with the legal avenues open to parties to obtain a copy of a testamentary document in Ontario Canada.

The purpose of this article is to review how an American plaintiff can enforce a U.S. judgment in Ontario Canada and to address the process of obtaining an Ontario court's recognition and enforcement of the American judgment. Given the historic high level of trade between the United States and Canada it is no surprise that there are commercial disputes resulting in litigation. Where problems sometime arise is in enforcement of the foreign judgments obtained.

In Canada, Ontario’s legislation discriminates against common law spouses’ inheritance rights. The purpose of this article is to examine the options open to a common law spouse who finds herself disinherited.

In Canada, Ontario's legislation provides that, with certain exceptions, marriages revoke a will. The purpose of this article is to examine a situation where couples only enter into a religious marriage. If this religious marriage revokes the will then an intestacy results and the surviving spouse might receive a windfall inheritance which was unintended by the couple.

An Intestacy occurs when people die without a Will. In Ontario Canada the laws setting out the beneficiaries in an inheritance are set out in Ontario's Succession Law Reform Act. This article reviews the options and rights of children whose parent's pass away without having made a Will. It canvasses the laws of intestate succession in Ontario Canada and the possibility of a Dependant's Relief Application under Part V of the Succession Law Reform Act.

Intestacy describes a situation when a person dies without a will. The best option available to the surviving spouse depends on the type of relationship (married or common law), the size of the estate and whether the deceased ever had any children. This article canvasses the law of Ontario Canada as it relates to the options open to legally married spouses of Ontario in an intestacy.

In Ontario Canada those who are appointed as Attorney for Property are designated by statute as a Fiduciary. As a general rule, the responsibilities, obligations and restrictions imposed by that designation precludes a fiduciary from financially benefiting from the role. Concerns arise when the grantor wants to give a gift to the attorney. The purpose of this paper is to examine the law and canvass how this issue has been addressed in Ontario.

In Ontario, lawyers are being sued by disappointed beneficiaries. Recent case law suggests that the lawyer not only owes a duty to his client, but to those who would have benefited from a testamentary bequest but for the negligence of the lawyer involved. This article reviews the Hall vs. Bennett Estate and its implications.

The purpose of this article is to examine the precedent Living Wills developed & published by the Commission on Medical Ethics of the Rabbinical Council of America (FN1) and Agudath Israel of America(FN2) in the context of Ontario law. This paper will address whether a hospital is bound by a written power of attorney for personal care which requires that the Substitute Decision Maker (“SDM”) consult with a rabbi and be bound by the rabbi’s decision concerning end of life issues

Under the law of Ontario a person appointed as attorney under a power of attorney over property is defined as a fiduciary who must conduct themselves with utmost good faith and loyalty to the beneficiaries. Consequently, the common law demands that there can be no conflict between the attorney’s personal interests and those of the beneficiary. The attorney is in breach of his fiduciary duty and liable if he takes any action to personally benefit by reason of his fiduciary duty.

This article canvasses the law in Ontario Canada with respect to whether domestic contracts are an effective defence against law suits for support brought against the estate by the deceased's spouse. Individuals often want to ensure that their estate planning is not susceptible to attack by their spouse. The legislation in Ontario Canada gives its courts discretion to ignore the domestic contracts and provide support to the surviving spouse.

In Ontario Canada Lawyers who draft wills risk liability if the testamentary documents do not accurately reflect the testator's intentions. This problem can arise when the lawyer does not speak the same language as the testator and mistakes occur so that the intended beneficiaries do not receive their inheritance. This article reviews options to Ontario Lawyers when drafting Wills for clients who do not share a common language with their solicitors.

A common flash point in estate litigation are assets held in joint tenancy between the deceased and a child. That child claims the money or asset belongs to him by right of survivorship. The other children say that their parent only created the joint tenancy to be helped with their finances & the money belongs to the estate. This article examines the law in Canada and reviews two recent Supreme Court of Canada Decisions about joint tenancy and the presumptions of resulting trust and advancement.

In Canada, attempts to remove an executor are common. These applications are often commenced by disgruntled beneficiaries or frustrated co executors who believe that the person in charge of administering the estate is being unfair and or dishonest. The paper reviews some relevant case law to examine under what circumstances an Ontario court decide to remove an executor.