Notes from the Judges Dinner

  • May 12, 2021
  • Laura Cardiff, newsletter editor

On April 8, 2021, Justices McEwen, Cavanagh, Conway, Dietrich, Hainey, and Koehnen were in attendance via an OBA Zoom webinar to answer wide-ranging questions posed by moderators Lionel Tupman and Noah Weisberg. Topics included the future of the Estates List post pandemic, practical questions about current procedural requirements, and how various in-person practices are being adapted to the Zoom format. The following is a brief summary of some of the information received.

Vesting Orders and Estate Administration Tax

When parties are seeking the appointment of an estate trustee or ETDL, but there is some urgency to the appointment, parties often come to court seeking an order vesting a piece of real property immediately in the estate trustee or ETDL. The judges emphasized that even where they grant such an order, it will not result in the avoidance of the estate administration tax. The estate trustee will have to file an application in the normal course and pay the tax.

Guardianships

Prior to the pandemic, guardianships were required to be heard in person at 10 a.m. open court hearings, as opposed to in chambers, because the declarations sought in a guardianship application affect people’s fundamental rights. The judges advised that even though we cannot physically be in open court during the pandemic, guardianship hearings will continue to be conducted as though we are in open court – the hearing will be on the record, and the judge will go through all the evidence filed and ensure the statutory provisions are complied with (for example, service on the alleged incapable person, and sufficient capacity evidence). Counsel were advised to make sure to get the PGT’s letter to the court before the hearing.

Gowning

In response to questions about ongoing gowning requirements, the judges clarified that currently, the Estates List does not require counsel to gown for any matters. For trials, judges have gowned, but not counsel. The gowning requirement remains suspended under the new notice to the profession at least the expiry of the current emergency order.