At the recent OBA’s CPD Essential Updates on Court Processes for Estate Litigators, new rule 6.1.01 of the Rules of Civil Procedure was reviewed, together with relevant case law and the potential application of bifurcation to estate matters.
Bifurcation is a tool that has been available to litigators for decades, pursuant to the inherent jurisdiction of the court, with case law (and in some cases, statute) prescribing the factors to be considered by the court when evaluating the potential bifurcation of a hearing.[1] Bifurcation was often sought in personal injury matters, to allow the issue of liability to be determined in advance of quantum of damages.[2] Bifurcation was also seen in family law proceedings, in which entitlement to support or equalization could be severed from the complex calculations required to determine the amount of support and equalization of net family property.[3]
Although bifurcation has always been available in estate matters, it was rarely if ever sought. However, the potential benefit to certain scenarios is obvious: for example, in a dependant support application, where there is a dispute as to whether the claimant is a dependant, bifurcation would allow determination of this threshold question, before parties are forced to go through very significant disclosure of assets and income, as well as the complex analysis of the needs and means of the alleged dependant.
New rule 6.1.01 makes bifurcation easier to order, in that the consent of all parties is no longer required. Instead, bifurcation can be sought on motion, or, if consent of all parties is available, at a case conference.
The court will apply various factors, originally established through case law and now codified in r. 6.1.01, to determine whether bifurcation, at that stage in the proceeding, is appropriate. The overarching objective is to allow for a more efficient and less costly process, while avoiding prejudice or advantage to a particular party.[4]
In the case of bifurcation in dependant support applications, the moving party will need to establish that the threshold issue of entitlement is severable from questions of whether the deceased provided adequate support from his or her estate, and the quantum of support that ought to be provided to the dependant. In many cases, the evidence relating to legal entitlement will focus on the relationship of the deceased with the alleged dependant, with evidence being provided by witnesses and/or in documents relating to predeath financials circumstances and transactions. In contrast, determination of adequate support will generally involve evidence of post-death circumstances and other factors set out in s. 62 of the Succession Law Reform Act. If entitlement is established, evidence from this threshold determination can be used for the second part of the test, so as to avoid duplication in the discovery process and/or hearing.
Other potential applications to estate matters are possible, including to Will challenges. As litigators become more familiar with the new rule, it is likely that other applications to estate matters will be presented to the court.
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The foregoing is for informational purposes only and should in no way be relied upon as legal advice.