Ontario Estates Bench-Bar Liaison Committee Meeting Minutes – October 16, 2023

Ontario Estates Bench-Bar Liaison Committee

October 16, 2023 4:30 PM Zoom

Facilitator:

Justice Dietrich, Chair

Note taker:

Mina Moser, Judicial Law Clerk

Attendees:

Justice Dietrich (Chair) Justice Sheard Laura Craig (Counsel, Office of the Chief Justice) Mina Moser (Judicial Law Clerk) Michelle Chen (Manager, Civil Trial Office) Monica Simion (MAG – Manager, Court Operations) Linda Omazic (Counsel, Court Services Division) Debbie Dykstra (MAG – Supervisor, Court Operations) Caroline Abela (The Advocates’ Society representative) Susan Easterbrook Lou-Anne Farrell Nicole Fielding (CAMH Representative) Andrea M. Hill Ian Hull Alison Lester (Federation of Ontario Law Associations representative) Kathleen McDormand (OBA representative) Mitchell Rattner (OBA representative) Susan Stamm (Counsel, Office of the Children’s Lawyer) Marshall Swadron Marni Whitaker

Regrets

Justice Fowler Byrne Justice Wilson Justice Woodley Kavina Nagrani (OBA representative) Michele Warner (CAMH Representative) Kimberly A. Whaley

1.

Welcome

Presenter:

Justice Dietrich

Justice Dietrich welcomed Committee members and took attendance.

 

2.

Approve Minutes

Presenter:

Justice Dietrich

Discussion

The minutes of the meeting held on June 12, 2023 were approved.

 

3.

Questions from the bar

Presenter:

Andrea M. Hill / Marni Whitaker

 

Discussion

1. Issue with deadlines for notice of withdrawal of objections and request for increased costs (M. Whitaker)

Currently, under the Rules of Civil Procedure, the deadline for serving the notice of withdrawal of objections and the deadline for serving the request for increased costs in a passing of accounts are the same day. If the objections are not withdrawn, then the passing of accounts is likely to be contested and the costs will be greater than the tariff. It would be helpful to have some time between the two deadlines. Otherwise, counsel may need to prepare them in anticipation of the matter being contested, which adds to the legal costs of the matter.

The Estates Subcommittee of the Civil Rules Committee has established a working group to review this issue. If an amendment to the Rules of Civil Procedure is recommended, it will be forwarded to the Civil Rules Committee for consideration. An update will be provided at the next quarterly meeting.

2. Redundant filing for passing of accounts (A. Hill)

The Rules of Civil Procedure require the applicant to file with the court, on a passing of accounts, much of the same information in two different records. For example, subrule 74.18(11.5) says that, on a contested passing, a record with consolidation of all objections to the accounts and a reply is to be served and filed 10 days before the hearing. Subrule 74.18(11.7) says that the documents in 11.5 must be included in a record to be filed 5 days before the hearing. Another example deals with the request for increased costs. Anyone seeking increased costs is to file a record containing a copy of the request, the costs outline, proof of service and an affidavit summarizing the responses and the factors that contributed to the increased costs. That is to be filed 5 days before the hearing. Then, under subrules 9 and 11.7, the applicant is to file another record containing the same information as above, but without the affidavit, 5 days before the hearing.

Justice Dietrich and Justice Sheard commented that they have not been overburdened by redundant materials under the current rules.

M. Whitaker will forward this issue to the Estates Subcommittee of the Civil Rules Committee for consideration. 

 

4.

Reminder of grace period for accepting old forms

Presenter:

L. Omazic

Discussion

Rule 1.06(3) of the Rules of Civil Procedure is revoked on November 4, 2023, pursuant to O. Reg. 188/23. As of that date, the four-month grace period for filing “old” forms 74A, 74.1A and 74J ends. Specifically, the February 2022 versions of these forms will no longer be accepted for filing as of Monday November 6, 2023. 

 

5.

Other Business

Presenter:

Open

Discussion

1. Discussion on Implementing Calendly for Short-Matter Bookings

Some court locations have implemented the use of Calendly.com, which is an online self-scheduling tool that allows parties to select their own court date instead of contacting the Trial Coordinator’s Office. Calendly is currently being used in Ottawa, Toronto, and other locations for scheduling certain matters in the Superior Court of Justice. When using Calendly, parties must select a mutually agreeable proceeding date and answer a series of questions. Calendly automatically sends the booking request to the trial coordinator’s generic inbox for approval and scheduling in the court’s case-tracking system.

Justice Dietrich indicated that the use of Calendly could be considered for short estate hearings in Toronto. M. Chen will follow up.

2. Estate Administration Tax Deferral Requests

The judiciary has noticed an increasing number of requests to defer the payment of the estate administration tax. To obtain this deferral, the applicant should provide evidence that the financial institution will not release estate funds for payment of the tax absent an issued certificate of appointment of estate trustee. Banks typically refuse to release funds for estate administration tax where the deceased had no will. Some members commented that institutions sometimes will not release funds for tax payment purposes even if there is a will.

3. Issues affecting Rule 74.03 – Request for Notice of Commencement of Proceeding

A question was raised about the timing for court staff to deliver a Notice of Commencement of Proceeding to requestors who have filed a Form 74P Request for Notice of Commencement of Proceeding under to the Rules of Civil Procedure. The newly revised Estates System conducts a search for these requests both at the time an application for a certificate of appointment of estate trustee is filed and during the clearance search stage, which takes place immediately prior to the certificate of appointment of estate trustee being issued. Previously, the system searched for these requests only at the clearance search stage. This recent system change should reduce the incidence of requestors receiving a Notice of Commencement of Proceeding at the same time that the certificate of appointment of estate trustee is issued.

4. Checklist for estates counter clerks

Given that there seems to be a high turnover rate for estate counter clerks, Justice Sheard asked whether the Toronto Estates Office has a checklist for bond waiver motions that can be shared with Hamilton estate clerks to assist them. D. Dykstra will share this form with the Hamilton SCJ estates office.  

 

6.

Standing Agenda Items

Presenter:

Justice Dietrich

Discussion           

1. Changes to the Succession Law Reform Act – tracking decisions

 

1. White v. White, 2023 ONSC 3740

This case involved an application for disclosure of the deceased’s solicitor’s file to determine whether the solicitor had notes that could be considered a draft will and whether the alleged draft could be validated under s. 21.1 of the SLRA. Justice Myers decided that drafts are simply drafts and did not meet the threshold of a fixed and final intention.  

 

2. Groskopf v. Rogers et al., 2023 ONSC 5312

The deceased completed and signed a printed fill-in-the-blank will sometime in 2004; however, that document was undated, and was not signed by witnesses. The document was located in the deceased’s lock box along with another document by the deceased entitled “Estate Planning & Inventory” in which the deceased indicated that she had made a will. Hilliard J. accepted this as evidence that the deceased believed that the fill-in-the-blank document she had prepared was her will, representing the deceased’s fixed and final testamentary intentions. The deceased also indicated in the estate planning document that her will was located in the lock box, which was where it was found. Hilliard J. concluded that section 21.1 of the SLRA applied, and validated the will.

 

2. Toronto Estates Office (scheduling, court bookings)

1. Staffing Issues

M. Chen advised that a replacement trial coordinator has been hired. Christina Irwin will be in this position for at least the short term. Recruitment is underway for a permanent group leader. Interviews will be conducted in approximately 2-3 weeks. 

2. Scheduling issues

M. Swadron noted that when counsel submit their confirmation forms for a case conference, the time slots scheduled are often for longer periods than the lawyers requested on the confirmation form (e.g. 30 minutes instead of 20 minutes). M. Chen advised that she will discuss with staff the need to diligently review the forms for this information. In the meantime, counsel can assist by identifying in an email to the trial coordinator any difference between the amount of time requested and the amount of time scheduled.

3. Probate application processing

D. Dykstra advised that staff are currently processing both email and hard copy probate applications that were filed with the court in mid-August, 2023. Some committee members advised that they have not yet heard back regarding probate applications filed in June and July, 2023. D. Dykstra advised that some files may have been inadvertently placed in the wrong folders so if counsel have not heard back about applications filed prior to August, they should send her an email at Debbie.Dykstra@ontario.ca.

• Next meeting: January 15, 2023, at 4:30 PM

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