On Thursday June 20, 2024, the Ontario Bar Association’s Elder Law Section hosted its 2024 Elder Law Day which focused on addressing advanced issues in Elder Law. Participants came together to learn from experts in their field regarding the latest developments in the law and the current issues impacting our aging population. Below, is a summary of some of the key takeaways from the day.
Panel 1: Dispute Resolution Options and How to Implement Collaborative Law into your Practice
During the first panel, Kristine Anderson – Fern Law, Nicola Savin – Birenbaum Steinberg Landau Savin & Colraine LLP, and Suzana Popovic-Montag – Hull & Hull LLP, engaged in an innovative discussion regarding dispute resolution options and the use of collaborative law in the practice of estate litigation and elder law.
Collaborative law was introduced as a dispute resolution process whereby the lawyers involved agree to take a cooperative, non-adversarial approach to address a dispute – as opposed to mediation, arbitration or litigation, and involves the parties jointly retaining third party professionals trained in collaborative law, such as mental health and financial professionals. The process was born out of a recognition that family law involves not just legal issues, but financial and emotional ones as well, a similarity to estate and elder litigation as pointed out by the panelists.
The process of resolution is client driven, with agenda set meetings chaired by the third-party individuals who manage the conflict and work with both sides to resolve the dispute.
The discussion amongst the panel members focused on the implementation of collaborative law to estate and elder law specifically. The panelists acknowledged that not all cases would be suitable for the collaborative law process. One such example was identified by Ms. Anderson as cases where there is a specific question of law – such as an interpretation of a Will. Kim Gale, the moderator of the panel, also identified that certain matters would need to involve the court where court orders would be required – such as an order seeking productions or appointment of an estate trustee. For such circumstances, Ms. Gale spoke to adjusting the collaborative law process to accommodate these situations.
Ms. Popovic-Montag relayed that while it would take a paradigm shift to adopt collaborative law in estate litigation – as it involves a different way of thinking – there are cases that would benefit from such a process. She specifically identified Power of Attorney and Guardianship struggles where family dynamics play a pivotal role; the outcomes are difficult to predict, and the litigation is costly. In such cases she identified collaborative law as an option for families who are looking to maintain the relationships involved.
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