MESSAGE FROM THE CHAIR – CAROLINE ABELA
Dear Colleagues,
It was a great pleasure chairing the 2017/2018 OBA Trusts and Estates Law Section Executive. We had a great many accomplishments this year with tons of work and effort by the executive. The executive committee was comprised of the following people:
Pia Hundel, Vice-Chair
Noah Wiseberg, Secretary
Danielle Joel, Past Chair
Nicole Woodward, Newsletter Editor
Jack Ditkofsky and Birute Luksenaite, CDP Liaison
Members-at-Large
Benjamin D. Arkin
Kathryn Laura Balter
Sara Beheshti
Lisa M. Filgiano
Rebecca S. Fisch
Andrea M. Hill
Heather Hogan
Emily S. Hubling
David Lobl
Darren Lund
Kathleen McDormand
Marni D. Pernica
Robin Spurr
Brittany Sud
Lisa S. Toner
Tanisha Tulloch
Lionel James Tupman
Below is a list of the activities of our committees. Thank you to the executive for all of their support, work and team effort.
(1) STATUTORY REVIEW COMMITTEE
The Statutory Review Committee was active on a number of projects in 2017-2018. The 2017-2018 committee was comprised of the following executive members: Darren Lund (Chair), Pia Hundal, Benjamin Arkin, Kathryn Balter, Robin Spurr, Lisa Toner, and Emily Hubling. The non-executive members of the committee were: Elizabeth Bozek, Barry Corbin, Ann Elise Alexander, Irit Gertzbein, Anastasia Sumakova, Marina Miussani, and Bianca La Neve. The student member of the committee was Rocco Scocco.
Hague Convention on the Recognition of Trusts
During the 2016-2017 OBA term, the Ontario government introduced Bill 218, Burden Reduction Act, and Schedule 7 to that bill contained provisions to adopt the Convention on the Law Applicable to Trusts and their Recognition (“Trusts Convention”) into Ontario law. The previous Committee reviewed the original submissions made by the CBA in 1991, consulted with academics and those involved with the original submissions, and determined not to intervene. Bill 218 received Royal Assent on March 22, 2017.
The Minister of the Attorney General notified the OBA on March 27, 2018 that the Trusts Convention would come into force in Ontario on May 1, 2018. The Trusts Convention appears as Schedule 1 to the International Recognition of Trusts Act, 2017, S.O. 2017, c.2, Sch. 7. and is now in force.
Tables of Concordance
In 2017 the Canadian Bar Association, Wills, Estates and Trusts Section undertook an update to its National Tables of Concordance for estates and trusts matters, which are published on the Canadian Bar Association website and accessible to members. Ann Elise Alexander, Elizabeth Bozek, and Darren Lund reviewed and updated the Ontario tables.
Charities Accounting Act Amendments Regarding Social Investments
On September 14, 2017 the Minister of Economic Development and Growth tabled Bill 154, Cutting Unnecessary Red Tape Act, 2017, an omnibus bill containing amendments to several statutes. Schedule 2 to Bill 154 proposed amendments to the Charities Accounting Act (“CAA”) to allow charities to make “social investments." Social investments are investments that further the purposes of the charity and provide a financial return, but may not meet the prudent investor standard otherwise applicable to trustees (a corporation incorporated for a charitable purpose is deemed to be a trustee for purposes of the CAA).
The Trusts and Estates Section participated in a joint submission to the Standing Committee on Justice Policy together with the Charity and Not-for-Profit Law Section, the Business Law Section, and the Franchise Law Section. Of particular concern to the Trusts and Estates Section were provisions of Bill 154 that would have reduced the protection from liability afforded to trustees. The CAA provides that certain provisions of the Trustee Act (“TA”) apply to trustees governed by the CAA. Those provisions include section 28 of the TA, which provides that trustees are not liable for loss to a trust arising from investments if the trustee has met the prudent investor standard. The proposed amendments to the CAA provided that the prudent investor standard would not apply to social investments, and in its place included different duties and obligations for trustees who engage in social investing. However, the amendments did not include a provision analogous to section 28 of the TA that would protect trustees from loss when making social investments if the trustees acted in accordance with the new duties and obligations.
The Estates and Trusts Section proposed an amendment to Bill 154 to include express protection from liability for trustees who, when making social investments, act honestly and in good faith in accordance with the duties and obligations in the CAA and the terms of the trust. The Minister adopted the amendment, which appears as subsection 10.2(7) of the CAA. Bill 154 received Royal Assent on November 14, 2017.
Ministry of the Attorney General (“MAG”) Consultation Regarding E-Filing
During the 2017/2018 term, Lisa Filgiano attended two MAG consultation meetings with respect to the province wide e-filing project. Representatives from the OBA Civil Litigation Section and the OBA Insurance Section also participated. The first meeting took place on November 29, 2017 and the second meeting took place on March 26, 2018.
MAG has been rolling out its e-filing project since the spring of 2017. In April 2017, a pilot was launched for the e-filing of Statements of Claim and Notices of Action in certain jurisdictions. By July 2017, the pilot was expanded to include Toronto. It is now possible to e-file Statements of Claim and Notices of Action in all jurisdictions in Ontario.
In November 2017, MAG expanded the project to include the filing of Notices of Intent to Defend and Statements of Defence. In February 2018, it was reported that 21% of claims were e-filed. The intention is that e-filing should become the principal means by which lawyers file their pleadings.
MAG is in the process of determining the next priorities for the e-filing project. The tentative plan appears to be to expand e-filing to (1) all remaining pleadings, (2) default proceedings and discontinuances, and (3) motion records, case conferences and pre-trials. The third category is probably in the distant future. MAG would like to continue quarterly (or so) meetings with the OBA to discuss priorities and feedback on the project.
At the moment, no e-filing is available for the Estates List in Toronto. The Estates Lists uses a different electronic court system (Frank) than the rest of the province, so it will likely take time before e-filing is available to it. The OBA Trusts and Estates Section will continue to monitor this project and advocate for its extension to the Estates List.
CBA Ethics Committee Working Group on Anti-Money Laundering Rules of the Federation of Law Societies of Canada
Elizabeth Bozek participated in a working group of the CBA Ethics Committee to review proposed amendments to the model anti-money laundering rules of the Federation of Law Societies of Canada.
Predatory Marriage Working Group
The predatory marriages working group was constituted by the OBA Public Policy department and draws its members from the estate and family sections (it not a committee of the Trusts and Estates executive). It is chaired by Robert Shawyer of the Family Law Section and coordinated by Heather Webb of the OBA.
Specific issues considered by the working group include the automatic revocation of wills by marriage, the standard for the capacity to marry, the application of the law of undue influence, and standing to challenge the validity of a marriage. Work to date has included exchanging research, analysis, and proposed legislation and group discussion of the issues. The working group’s goal is to deliver proposed legislation for approval by the OBA Public Policy department and/or applicable section executives for ultimate submission to the Ministry of the Attorney General. There is broad consensus on the working group that the wills should not automatically be revoked by marriage; other provinces have already moved in this direction and Ontario should follow. On the other issues, there is a distinct lack of agreement about whether and how the law should develop. The working group has not made any formal recommendations as yet.
The working group is currently inactive, having last met in 2016. In September 2017, the Statutory Review Committee of the Trusts and Estates Section met by telephone to discuss whether and how to revive the working group. That call and its follow-up did not result in a decision to take any steps. Robert Shawyer similarly took the issue to the Family Law Section. He called for a vote of the executive to have the Family Law Section take on and advance the predatory marriages issue. The motion was defeated.
Moving forward into the next term, the Statutory Review Committee and/or the predatory marriages working group may consider moving forward with only the issue of automatic revocation of wills by marriage (and abandoning law reform on the topic of capacity to marry more generally). On this discrete issue, there seems to be a broad consensus and it may be possible to make real progress, although the matter would need to be discussed with the full executive.
Capacity Law Working Group
This committee’s mandate in past terms was to make recommendations to the executive about the OBA’s submissions to the Law Commission of Ontario on its consultation on legal capacity, decision-making and guardianship. The LCO’s Final Report on Legal Capacity, Decision-making and Guardianship was released during this term in March 2017. The working group considered reporting to the executive about the recommendations made in the Final Report that the OBA should support or advocate for. However, in consultation with the full executive, it was determined that there was insufficient interest or incentive to dedicate the significant volunteer and time resources necessary to undertake this project. The working group has recommended not taking any further steps at this time. This decision should be revisited if the new government of Ontario, after the June 2018 election, expresses any interest in this area.
Law Commission of Ontario: Improving the Last Stage of Life
The Law Commission of Ontario (“LCO”): Improving the Last Stages of Life Project started public consultations in the fall of 2017, which concluded in the spring of 2018. A public survey was also released in spring 2018. The LCO staff are in the process of compiling the feedback from the consultation and public survey. Members of the LCO hosted consultation sessions, which were attended by members of the OBA. The first consultation was held on August 31, 2017 and the second consultation was held on February 1, 2018.
Pia Hundal continues to sit as a member of the Advisory Committee, which continues to meet every month or two to provide feedback and guidance on the project to the LCO. The next meeting will be in June 2018, at which point the Advisory Committee will be reviewing the feedback from the public consultations. The LCO is aiming to have the final report completed by the end of 2018 or early 2019.
(2) BROWN BAG LUNCH COMMITTEE
The OBA Brown Bag Lunch Program continues to attract a strong following. With 20 locations throughout Ontario, a wide variety of topics are discussed amongst the participants (otherwise referred to as Brown Bag Lunchers). New and pertinent case law and statute, topics of interest, procedural issues, and practice points are just some of the topics rousing a lively and thought-provoking discussion. It is a great opportunity for new and old members alike to catch up with the Bar, and to ensure that one's practice stays current.
We encourage everyone to attend at one of the convenient locations, a complete list of which can be found on the OBA website, and join the discussion!
(3) REGIONAL ISSUES SUBCOMMITTEE
The Regional Issues subcommittee of the executive for the Trusts and Estates Section continues to be active. The subcommittee is dedicated to addressing estate-related issues raised in jurisdictions outside of the GTA. These issues include regional practice directions; access to court service; and other local initiatives. This year trust and estate CPD events were hosted throughout the province. A Dinner with your Honourable Estates Judge event will be taking place again in Ottawa at the end of May.
(4) OBA INSTITUTE COMMITTEE
The 2018 OBA Trusts and Estates Institute took place on February 8, 2018. It was a half-day program with a variety of topics in estate planning, administration and litigation. The agenda for the program is attached.
We had 84 attendees in person and 84 attendees via webcast, which is an increase of 31 attendees from the previous year. The feedback from the program was generally very good. For next year, some areas of improvement are:
1) more advanced substantive topics (perhaps doing fewer topics in more depth); and
2) encourage speakers to present in a manner that does not track their paper.
Suggestions for topics to be covered at next year's Institute (obtained through evaluation forms) are:
1) planning with respect to life insurance and the use of insurance trusts; and
2) more estate litigation topics.
The only suggested speakers for next year were an insurance expert and Jordan Atin. The vast majority of attendees who filled out the evaluation form (although only 10% of attendees filled out an evaluation) indicated that they would attend the OBA Institute next year and would recommend the program to others.
The one area that could be improved according to the evaluations is the webcast. According to one of the attendees who completed an evaluation, the webcast cut out for approximately thirty (30) minutes.
(5) OUTREACH COMMITTEE
November is Make a Will Month and this year the OBA launched a public awareness campaign, including a creative campaign and an extensive community engagement program. As an extension of the OBA Speakers Bureau, 30 volunteer OBA members presented sessions about Wills and Powers of Attorney at libraries and community hubs in Toronto, Ottawa, Cambridge and Hamilton.
The Trust and Estates Section Executive supported Make a Will Month from the early planning stage. They helped with volunteer recruitment, supported the development of messaging and created a master presentation and participated in media interviews.
Many on the Executive also presented sessions; one of Section Chair Caroline Abela's sessions attracted 100 attendees! According to The Toronto Public Library, "Make a Will Month is one of the most successful adult information series that TPL has ever presented. With so many branches participating, we reached all areas of the city."
More than 1,000 members of the public attended Make a Will Month sessions during the month of November. We are hopeful that the campaign encouraged members of the public to take care of the estate planning needs.
(6) OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE (OPGT)
GUARDIANSHIP ADVISORY COMMITTEE
A meeting of the OPGT Guardianship Advisory Committee took place on February 7, 2018, with three members of the OBA Trusts and Estates Section Executive in attendance along with the Public Guardian and Trustee, Ken Goodman (the "PGT"), various members of the OPGT and six representatives from other stakeholders of the OPGT, including representatives from the Long-Term Care Association, the Ontario Psychiatric Association and the Advocates Center for the Elderly.
The meeting included an update from the PGT regarding developments in the OPGT since the last meeting of this committee in 2015, including:
- the Ontario Government's Actions Plan for Seniors, which has earmarked funding for the OPGT to be used in four initiatives if the funding is made available:
- public education regarding powers of attorney;
- creating two (2) full-time positions at the OPGT;
- establishing a contact centre to track communications and direct resources more efficiently; and
- pursuing modernization within the OPGT;
- a protocol for the OPGT to follow when complaints are raised through ReportON (a hotline developed in response to the Guy Mitchell Inquiry);
- a request for input from the OBA Trusts and Estates bar regarding the OPGT's approach to managing property of incapable adults when that property includes pets and the incapable adult is not immediately returning home;
- a review of various Law Commission reports in progress or released; and
- notification that the Rules Committee will be reviewing Rule 7 of the Rules of Civil Procedure.
The OBA looks forward to having continuing discussions with the PGT through the OPGT Guardianship Advisory Committee to provide its input with respect to projects undertaken by the OPGT and feedback regarding our section's experience with the OPGT.
(7) TECHNOLOGY COMMITTEE
The role of the Technology Committee is to encourage section members to contribute to the resources and other content to the website, and to monitor upcoming events of interest to the trust and estates bar and serve as a liaison with the OBA to ensure that notices and information are posted to the section’s website.
This year was marked by the launch of the OBA’s Make a Will month. During Make a Will Month the OBA and its members raised awareness by:
- reaching over 100,000 Canadians online;
- advertising on public transit and shopping malls;
- displaying over 70 posters in offices and libraries across Ontario;
- promoting the find-a-lawyer search engine, which resulted in over 450 searches;
- and by speaking at over 40 free public legal information sessions to more than 1,000 attendees.
The Trusts and Estate Section members, and in particular Kathryn Balter, played an integral role in the provision of the above public legal information sessions. Going forward the Trusts and Estates Section hopes to explore ways in which Make a Will Month can be linked to the Trusts and Estates Section home page as a source of further information and referrals.
The Insiders emails produced by the OBA’s Trusts and Estates Section are well received as evidenced by response rates that are well above OBA norms.
(8) TRUSTS AND ESTATES NEWSLETTER COMMITTEE
(FORMERLY KNOWN AS “DEADBEAT”)
The Trusts and Estates Newsletter (formerly known as “Deadbeat”) had another successful publishing year, with a total of 18 publications to date, and a further six anticipated before the end of June.
We received a mid-year technology report from the OBA indicating high interest of our members in the content of the publications. These statistics will no doubt assist the committee in the future with the task of gathering articles for publication.
(9) SECTION PROGRAM COMMITTEE AND CPD PROGRAMMING
This year was somewhat of a transitional year for the Section Program Committee and the CPD Programming Committee. In the past the passport series was organized by one committee and more in-depth programming was organized by another committee. This year, the two committees were combined such that there is now one CPD Programming Committee operating within the Trusts and Estates Section of the OBA. This was very effective and productive as it allowed more people to collaborate to come up with dynamic, interesting, and relevant programming.
This year the Trusts and Estates Section, in conjunction with other OBA sections, has delivered several interesting and thought-provoking programs. These programs include:
Residential and Cottage Trusts: Practice and Tax Advice for Effective Drafting: September 26, 2017
Chair: Rebecca Fisch
Preventing, Correcting and Navigating Errors in Estate and Trust Documents: October 5, 2017
Chairs: Benjamin Arkin and Ambie Edgar-Chana
Contested Guardianships and Battling Attorneys: October 24, 2017
Chair: Pia Hundal
Wills and Estate Planning: A Primer: November 21, 2017
Chair: Emily Hubling
Critical Advanced Estate Planning Issues: November 21, 2017
Chairs: Sara Beheshti and Amanda Stacey
How to Protect Yourself from Liability When Acting as Estate Trustee: November 28, 2017
Chair: Tanisha Tulloch
INSTITUTE - Emerging Issue in Estates, Trusts and Incapacity Law: February 8, 2018
Chairs: Kathryn Balter and Robin Spurr
Contested Passing of Accounts: February 27, 2018
Chair: Jessica Feldman
Critical Issues at the Intersection of Family Law, and Trusts and Estates Law: March 8, 2018
Chairs: Benjamin Arkin and Robert Shawyer
Tax Update: March 27, 2018
Chair: Amanda Stacey
Essential Evidence Series for Estate Litigators – Part I: April 5, 2018
Chairs: Ian Hull, Lionel Tupman, and Noah Weisberg
Dinner with Your Honourable Estates List Judges: April 24, 2018
Chair: Caroline Abela
Essential Evidence Series for Estate Litigators – Part II: May 17, 2018
Chairs: Ian Hull, Lionel Tupman, and Noah Weisberg
Dinner with Your Honourable Ottawa Estates List Judges: May 31, 2018
Chair: Kathleen McDormand
Essential Evidence Series for Estate Litigators – Part III: June 6, 2018
Chairs: Ian Hull, Lionel Tupman, and Noah Weisberg
One of the goals of the committee this year was to address the relatively low subscription rate to the section’s passport series. To address this concern the committee has decided to offer two separate passports next year. One of the passports will more heavily focused on litigation while the other will have more emphasis on estate planning. We hope that by making the programs more focused on the two separate areas of practice that people will be more inclined to purchase the passport. Next year we will also be introducing a “Dinner with Senior Estate Planners” event that is meant to complement the “Dinner with Your Honourable Estates List Judges”. Additional details will follow in the coming months.
(10) ELDER LAW SECTION
In the 2017/18 year, the Trusts and Estates Law Section Executive encountered a new section in the OBA, the Elder Law Section. There was some concern regarding the possibility that these sections might overlap, and whether the Elder Law Section might have an impact on membership and CPD attendance in the Trusts and Estates Section.
Additionally, at the annual OBA Institute, the Elder Law Section addressed issues relating to decisional capacity – a topic traditionally addressed in many Trusts and Estates Law Section programs.
In an effort to address any potential for overlap and competition between these sections, in April, 2018, the Presidents of the Elder Law and Trusts and Estates Sections met with those sections’ respective CPD Liaisons to discuss resolution of potential problems. It was agreed that greater communication was required between the sections and that, given that Trusts and Estates plans its CPD well in advance, Elder Law would endeavour to coordinate with Trusts and Estates and team-up if possible if topics were similar, or otherwise avoid duplicate topics.
The solution to any potential conflict appears to be that the sections should make best efforts to cooperate and work with the OBA CPD Liaison staff to ensure overlap is kept to a minimum.