Feb 13, 2024
Completing the Estate Information Return
Congratulations! You have finally received your issued Certificate of Appointment of Estate Trustee from the court. Now it is time to get your hands dirty and administer the Estate. (While you may have been able to take steps before this time, financial institutions may not recognize your authority until you have a Certificate of Appointment.)
Along with the issued Certificate of Appointment, the court will also provide you with a notice about a form called an Estate information Return (“EIR”). An Estate Information Return must be filed with the Ministry of Finance within 180 days of the date of the Certificate. It is used to enforce compliance with the Estate Administration Tax Act.
The EIR lists details of all the Deceased’s assets and their date of death values. For example, if the Deceased owned a property at the time of their death, you would have to obtain the Deceased’s address, property assessment roll number and property identifier number (PIN). If the Deceased had bank and/or investment accounts, you would need to list the account numbers and contact information for those institutions. If the Deceased had a vehicle, you would have to list the vehicle identification number, make, model and year of that vehicle. The form also requires you to list all other assets such as personal effects and refund cheques that the Deceased may have been entitled to at the time of their passing.
The EIR also gives the estate trustee the opportunity to mention any asset that was missed or discovered after the Application for a Certificate of Appointment was submitted with the court and it allows the estate trustee to pay the applicable estate administration tax for those assets.
It is good practice to diarize the deadline to file the EIR so you won’t miss it!
You can find the form for the EIR along with a guide to assist you here: https://forms.mgcs.gov.on.ca/en/dataset/9955
If you are unable to obtain all asset information within the 180 days deadline, don’t worry, you can file an amended return which would be due within 60 days of the estate trustee becoming aware that the information on the initial return is inaccurate.
If you need help, contact Casey & Moss
Felicia Cyril
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Feb 1, 2024
Angela wrote a blog recently about Casey & Moss offering me a job as an associate, knowing that I would be heading off on maternity leave just a few months after I started.
I recall so clearly telling Angela and Angelique that I was pregnant and would completely understand if, given the size of the firm at the time, I was not the right fit for them. Without skipping a beat, Angela and Angelique said that, for the right person, they were willing to wait. I was blown away and knew that Casey & Moss was special and a place I wanted to work.
Flash forward to five years, two children, and a pandemic later, I am so grateful for my decision to join Angela, Angelique, and Laura and to be part of the firm they created. Casey & Moss is a remarkable thing: a firm with exceptional lawyers recognized for their expertise, rigor, and mentorship, but also a place where lawyers with young kids, who may have to work from home for a week while also caring for a sick toddler, can genuinely do so without fear or anxiety about how it will affect potential entry into the partnership.
When I told the other partners that my family circumstances meant I may have to work remotely for weeks, or sometimes months at a time, the partnership was not only immediately accommodating, but also supportive and even delighted for me to have new experiences and adventures. This is a rare thing in a law firm.
When Angela writes in her blog that, from her perspective, “There will be years that are work-heavy and years that are family-heavy. The right people are the right people, no matter where they are in the family-work cycle of life,” I can attest first-hand to how running a firm with this ethos at its core deeply impacts the culture of a firm. It not only generates loyalty and goodwill amongst its employees, but also the desire and freedom to excel and grow.
Cara Zacks
Jan 26, 2024
This blog is the first in a multi-part series on the distinctive role of the litigation guardian at common law.
One of the most important but underappreciated roles in the civil justice system is that of the litigation guardian. Under Rule 7.01 of the Rules of Civil Procedure, “[u]nless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.”[1] But where does the concept of a litigation guardian come from, and what does the role require today?
One of the longstanding features of the Western legal tradition is that the law should protect those who are incapable of protecting themselves.[2] Ever since the days of the Roman praetor and his juris consults, courts have required minors and other parties to be accompanied by a tutor or curator. The former was tasked with representing a child up to the age of puberty.[3] The latter, chosen by the minor, could act until the child reached the age of 25. While a tutor was responsible for protecting a child’s person and property, a curator’s duties extended to a child’s property and litigation.[4] The curator’s power could either be “general” or “special”: they could be granted a general power over a child’s estate or appointed for a specific transaction with limited authority.[5]
The origins of the litigation guardian can also be traced to the canon law of the Church. For example, the Church claimed a general jurisdiction over miserabiles personae, those who by vulnerability or incapacity could not protect themselves. In family proceedings, children frequently came under the jurisdiction of the Church when dealing with annulments and domestic relations. Ecclesiastical courts also had exclusive jurisdiction over probate, and often appointed guardians to ensure that minors received their legitime under a will or on an intestacy.[6]
In England, these Roman and canonical concepts were slowly transformed into the notion of the common law guardian. Not unlike the Church, the King served as parens patriae (“parent of the nation”) of all non-sui juris persons, including children and incapable adults. In this role, the King could issue letters patent to appoint a person to act as guardian of a child or incapable person. This law was initially “disjointed,” recognizing at least ten kinds of guardians under narrowly defined circumstances. Moreover, the Roman distinction between tutor and curator was often blurred.[7] Despite these deficiencies, the role of the common law guardian persisted alongside the jurisdiction of the ecclesiastical courts. The protective function of the King later passed to the Court of Chancery, but the role of guardian remained and continued to be refined.[8]
By an early English statute, children were permitted to participate in court proceedings with the assistance of a special guardian.[9] Historically, a person acting for a plaintiff in a suit was referred to as prochein ami (“next friend”), while one acting for a defendant was the guardian ad litem.[10] This distinction was later dropped, and the terms became interchangeable. Today the role is commonly known as “litigation guardian,” representing “the modern equivalent to the Roman special curatore and the English common law guardian” but limited to representing a party under disability in court.[11]
In Part 2, we will explore how this role became part of the law in Ontario and discuss some of its distinctive features. Stay tuned!
Adam Giancola
[1] Rules of Civil Procedure, RRO 1990, Reg 194, r 7.01.
[2] Martin D Begleiter, “The Guardian Ad Litem in Estate Proceedings” (1984) 20 Williamette L Rev 643 [Begleiter, “The Guardian At Litem”] at 645.
[3] Richard H Helmholz, “Roman Law of Guardianship in England, 1300-1600” (1978) 52:2 Tulane L Rev 223 [Helmolz, “Roman Law of Guardianship”] at 229.
[4] Ibid at 229.
[5] Begleiter, “The Guardian At Litem” at 645.
[6] Helholz, “Roman Law of Guardianship” at 225-27.
[7] Begleiter, “The Guardian At Litem” at 646.
[8] Ibid at 646.
[9] Ibid at 646.
[10] Ibid at 646, note 26.
[11] Ibid at 646.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jan 26, 2024
“I guess we don’t fire people for that anymore”. This was my department head’s response when I told him I was pregnant in my second year as an associate at my former Big Law firm.
Even with the most generous spin and assuming he intended it as a joke, I was not laughing. Whether intended or not, the comment exacerbated a feeling I already had that being pregnant decreased my worth in the eyes of The Firm.
Back in those days (this was 20 years ago, to be fair), the typical pattern for female lawyers was to delay pregnancy until they made partner. As someone who entered law school as a mature student, that timeline probably wasn’t going to work for me. So, I took the more radical path and had my children early in my career as an associate.
I should have left Big Law back then. But I felt like there was no way that I could market myself while pregnant. When I was done my maternity leave, I felt I owed my former firm a debt of heavy billable hours to make up for the fact that I had reproduced a human on their dime.
I look at it all so differently now. I hope women today are not burdened by the thoughts I had when I was a new associate trying to plan a family/mom trying to plan a career. I now realize that my thoughts about being some kind of liability if I chose to take a maternity leave were wrong-headed.
As an employer, I have a different perspective. Mentoring young associates who are entering the beginning of their parenting years is a worthwhile business investment. A legal career is likely to span decades. There will be years that are work-heavy and years that are family-heavy. The right people are the right people, no matter where they are in the family-work cycle of life.
When Angelique and I met Cara for the first time for an informal coffee chat about our practice area, we immediately knew that she would be the perfect fit at Casey and Moss. We weren’t sure if she was actually looking to work with us, but we took a chance, sent her an offer, and hoped she would be interested. She came back and said that she wanted to let us know before accepting our offer that she was pregnant. We said, “We’re still in if you’re still in” and we were lucky enough that she said yes.
If you are a female lawyer who wants to have a family, and you are thinking about whether a firm is a right fit for you, my advice is to ignore all the marketing messages about whether a firm offers so-called “work life balance”. There is only one metric that matters: What percentage of the equity partnership is comprised of women with children?
Angela Casey
Jan 9, 2024
On January 1, 2022, various amendments to the Succession Law Reform Act (“SLRA”) came into effect as part of Bill 245, the Accelerating Access to Justice Act. As part of those amendments, Bill 245 repealed subsection 15(a) and section 16.
Before December 31, 2021, sections 15 and 16 of the SLRA provided that a testator’s marriage had the effect of revoking their Will, except in some specific circumstances:
Revocation generally
15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;
…
Revocation by marriage
16 A will is revoked by the marriage of the testator except where,
(a) there is a declaration in the will that it is made in contemplation of the marriage;
(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.
In the current version of the SLRA, those provisions simply do not exist. A reader will find instead the note “Repealed”, followed by the citation for Bill 245, as shown below:
Revocation generally
15 A will or part of a will is revoked only by,
(a) Repealed: 2021, c. 4, Sched. 9, s. 2.
(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it. R.S.O. 1990, c. S.26, s. 15; 2021, c. 4, Sched. 9, s. 2.
16 Repealed: 2021, c. 4, Sched. 9, s. 3.
There is no transition provision, meaning there is no provision specifying that marriage revoked a Will for marriages prior to January 1, 2022, or any other date. The law for decades was that marriage revoked a Will. But, in the current law there is no indication that was ever the case.
This is in contrast to other changes to the SLRA made by Bill 245, where the amendments included specific language indicating when the changes are to take effect. For example, Bill 245 added section 43.1 to the SLRA, which provides that separated spouses do not inherit on the intestate death of their former spouse. The transition provision for this section specifies that section 43.1 only applies if the event that constitutes the separation (for example, the day the couple began living separately, or the date of their separation agreement) occurred after December 31, 2021.
What is the effect of the complete revocation of sections 15(a) and 16, with no transition provision? If a person made a Will in 2020, married in 2021, and died in 2022, was their Will revoked by marriage, because the law at the time of the marriage was that the Will was revoked? Or, is the applicable law that at the time of death, and therefore the revocation-by-marriage would only take effect if the person had died before December 31, 2021, when sections 15(a) and 16 were in force?
The consensus has been that the relevant time is the time of marriage. Commentary on the revocation provisions consistently states that the changes brought in by Bill 245 only apply for marriages on or after January 1, 2022. The current probate forms draw a distinction between marriages before and after Jan 1, 2022: the applicant is required to say if the marriage was before or after that date, and if before, to explain why a prior Will was not revoked.
No court decision has addressed this question directly, but in the reported case law, judges seem to operate on the same basis: if sections 15(a) and 16 were in effect at the time a person’ married, their existing Will was revoked unless the section 16 exceptions applied.[1]
But does this make sense?
The general rule is that a Will speaks from the time of death, and before death a Will is merely a piece of paper. Courts will not consider the validity of a testamentary document until after the person has died. It seems counterintuitive, then, for the applicable legal landscape in this situation to be the time of marriage, rather than the time of death.
Further, if the legislature’s intention was for the pre-2022 marriages to continue to be treated as revoking prior Wills, would the legislature not simply have amended sections 15 and 16 to include a transition provision, specifying it only applied to marriage prior to Bill 245 coming into effect?
The law for decades was that marriage revoked a Will. But, in the current law there is no indication that was ever the case. The complete revocation of the provision suggests that the legislature intended for any Will for a Deceased who died after December 31, 2021, to have survived a subsequent marriage.
The answer will ultimately be a matter of statutory interpretation in a case where the issue is before the court. The principles in this area are complex, and are detailed at length in E.A. Driedger’s article “Statutes: Retroactive Retrospective Reflections“, 1978 CanLIIDocs 18, for anyone looking for some light reading. Sullivan on the Construction of Statutes, by Ruth Sullivan also contains an entire chapter on the “temporal application” of statutes, and how it is to be determined.
In general, there is a presumption against legislation applying “retroactively,” defined as applying “so as to change the past legal effect of a past situation.” There is also a presumption against the removal of already vested rights. However, there is an important distinction drawn between retroactive application, which changes the past effects of past situation and legislation, and what is often referred to as “retrospective” legislation, which attaches new consequences for the future to an event that took place before the legislative change.[2]
Arguably, Bill 245 does the latter, and merely changes the current effect of a past marriage. No right can be said to have vested prior to the testator’s death, since the Will does not create any rights, or have any effect prior to the testator’s death.
Nevertheless, what a court decides remains to be seen.
Laura Cardiff
[1] See, for example, Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315 (CanLII) at para 5. It was an agreed-upon fact in that case that the Deceased’s marriage in the year 2000 had revoked his last Will. The issue was whether it was subsequently revived.
[2] See Benner v Canada, [1997] 1 SCR 358 at paras 39-40, citing Driedger.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Dec 14, 2023
On November 29, 2023, Adam Giancola and Zara Wong were speakers at the “Representing Children in Civil Matters” continuing professional development program held by the Ontario Bar Association, co-chaired by Trusts and Estates section and Civil Litigation section of the OBA.
Adam presented on the ethical issues and professional considerations that arise when representing children from an estates lawyer’s perspective. The presentation touched on who is the lawyer’s client, how to deal with issues that arise when dealing with separated families, and limiting or developing areas of expertise, with the goal of providing practitioners with tools to effectively address professional and ethical issues that arise in injury settlements for minors and guardianships of minors.
Zara presented on application to pass accounts in personal injury guardianships of minors. The presentation focussed on common issues found in passing of accounts applications, and provided tips on how lawyers can prepare and educate their guardian clients on following the Management Plan, understanding their fiduciary duties as guardian, and maintaining accurate records and vouchers.
Nov 27, 2023
Taxed for having your home vacant…the concept, at first blush, evokes the lyrics of a George Harrison tune:
“If you try to sit, I’ll tax your seat…
If you talk a walk, I’ll tax your feet…
‘Cause I’m the taxman, yeah, I’m the taxman.”
Nonetheless, tax on vacant homes is now in effect at the municipal level (Toronto’s Vacant Home Tax) and at the federal level (the Underused Housing Tax). The stated purpose of the taxes is to increase the supply of residential housing by creating an incentive for homeowners to keep their homes occupied.
In this blog post, I digest these recent rules (which took effect starting in 2022) to give the executor (a.k.a. estate trustee, deceased’s personal representative) an overview of the potential filing and tax obligations, when the estate includes residential property.
Executors should note that there are some other municipalities in Canada (e.g., Ottawa and Vancouver) that have their own municipal vacant home taxes (outside the scope of this digest).
Residential Properties in Toronto (municipal Vacant Home Tax)
Every Toronto homeowner has a reporting obligation under the new tax rules. If the homeowner has died, the executor of the estate will make the ‘declaration’ to the City, either online or by mail in February, indicating the status of the property (vacant or not) in the previous year.
A property’s status is ‘vacant’ where it:
- Was not occupied by tenants for at least six months in the previous calendar year, and
- Was not the principal residence of the owner, or another occupant, for at least six months in previous calendar year.
Conversely, the property is ‘not vacant’ if either of those conditions are satisfied. And if the residential property is a duplex or triplex, it’s only necessary for a single self-contained unit to meet either of those two conditions for the property’s status to be ‘not vacant’.
There’s never any tax when the status is ‘not vacant’. Even when the status is declared ‘vacant’, there’s no tax if an exemption applies. Executors should take note of the exemption from tax for the year of the owner’s death and the following calendar year (if the vacancy is due to the death of the owner). There are several other exemptions, including when occupation is prevented by renovations, or when the principal resident is in hospital or long-term care (subject to certain conditions).
If the declaration isn’t made, the City can deem the property vacant – this eliminates the ability to claim exemptions that would otherwise be available.
To summarize, vacant home tax will be owed when a residential property is declared vacant and no exemptions are applicable (or if the property is deemed vacant). The amount of tax is 1% of the assessed value listed on the property tax bill. For a property assessed at $1,000,000 for 2023, the vacant home tax would be $10,000, payable in three instalments in 2024.
Residential Properties in Canada (federal Underused Housing Tax):
Executors also need to consider any obligations they might have under the federal Underused Housing Tax, when an estate contains residential property located anywhere in Canada.
The good news is that in most cases, executors won’t have any federal filing requirement (which also means no tax). This is because individual Canadian citizens and permanent residents who own residential property are classified as ‘excluded owners’ – i.e., excluded from having to file a return. The CRA takes the view that someone who is an ‘excluded owner’ before death remains an excluded owner after death for as long as their name remains registered on title. So if title remains in the Canadian deceased’s name, the executor won’t need to file. And if title is transferred into name of the executor, there would still be no filing requirement, as long as the executor is him or herself an ‘excluded owner’ – i.e., a Canadian citizen or permanent resident.
Yet there are certain situations where a federal filing obligation could arise:
- Where a non-Canadian died owning residential property in Canada, and title remains registered in the name of the deceased, the executor will need to file (because the registered owner is not Canadian and therefore is not an ‘excluded owner’).
- An executor (if a Canadian citizen or permanent resident) is an ‘excluded owner’, but all other varieties of trustees are not ‘excluded owners’ and will need to file a return. So the trustee of a testamentary trust, who in that capacity is the registered owner of a residential property, will need to file (even if he or she is a Canadian citizen).
If there’s no filing requirement, there’s no tax. And when filing a return is required, there are exemptions, such as where the property is occupied or a principal residence for at least six months of the year, and an exemption from tax for the year of the owner’s death and the following year.
If no exemptions apply, taxes for the year are calculated as 1% of the greater of the assessed value and the most recent sale price. There’s an election to use fair market value, which may be useful where only a small part of a large parcel of land is used for residential purposes.
Summary
George Harrison undoubtedly would be miffed if he knew about vacant home taxes. But executors really shouldn’t be overly concerned, for the reasons summarized below:
- If the deceased owned residential property in Toronto, the executor will have an annual obligation to declare the property’s status under Toronto’s Vacant Home Tax. But there won’t be any tax unless the property is considered vacant and no exemptions apply (remember, tax is exempt for the year of the owner’s death and the following year if the vacancy is due to the death of the owner).
- On the federal level (Underused Housing Tax), executors usually won’t have a filing obligation (which automatically means no tax), except if the deceased homeowner was a non-Canadian and the home remains registered in the deceased’s name. When filing is required, there’s no tax if the property meets the occupancy criteria. Tax is also exempt in the year of the owner’s death and the following year.
Greg Miller
Greg is a native of Toronto. With a keen interest in litigation, he is delighted to be articling at Casey & Moss LLP. He graduated from U of T’s commerce program, and Western’s law school, with distinction. He has experience in commercial property management, and a personal interest in rare books and nutrition (with an admitted weakness for butter tarts).
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Nov 21, 2023
On October 23rd, 2023, Casey & Moss Partners Laura Cardiff and Cara Zacks were speakers on a panel hosted by the Ontario Bar Association on the subject of meeting the minimal evidentiary threshold in will challenges.
When someone challenges the validity of a will, before the will challenge can proceed before the court, the challenger must prove to the court that there is at least a minimal amount of evidence to support the claims being raised. If the will challenger cannot point to any evidence that, if corroborated, would prove that the deceased executed their will while lacking capacity, under duress, or under undue influence, then the will challenge won’t be allowed to move forward.
The purpose of requiring will challengers to meet this minimal evidentiary threshold is to protect an estate from having to spend time and estate money defending will challenges that don’t have any merit at all.
Laura and Cara spoke to the audience, consisting primarily of other estate litigators, about recent court decisions on the topic. They also provided a series of practical tips for litigators on what to include, and what to leave out of affidavits to make sure clients meet the threshold.
Nov 6, 2023
The Superior Court of Justice is one of the busiest courts in the world, so commencing a court application can be intimidating and confusing to people who are not familiar with the procedures of the court. The Toronto Estates List is a branch of the Superior Court of Justice which hears matters such as will challenges, passing of accounts, and guardianship applications (just to name a few). Below you will find the simplified steps of commencing a court application with the Toronto Estates List:
- DRAFT YOUR MATERIALS
Your application materials will consist of a Notice of Application along with an Affidavit and together these two documents will form your application record. The Notice of Application will set out the grounds of the application and the relief that you are seeking. The applicant of the proceeding will swear their own Affidavit which details the facts of the case. A lawyer will usually draft these materials for you, but if you are self-represented it is your responsibility to draft your materials as you will need to serve them on the opposing party. Your application record will also be relied on by a Judge when your matter goes to court.
- ISSUE YOUR NOTICE OF APPLICATION
Now that your materials are finished – you can have your Notice of Application issued with the court. Your Notice of Application can be issued electronically via the Justice Services Online website which can be found here. If your materials are successfully accepted by the court, you will receive an email confirmation enclosing the issued copy of the Application which includes the court stamp and court file number.
- SERVE AND FILE YOUR MATERIALS
Now it is time to serve your materials on the Respondent(s). A Notice of Application is an originating process, meaning that you are required to serve the Respondents by personal service as stated in Rule 16.01 (1) of the Rules of Civil Procedure. After serving all the Respondents, you will need to have your Affidavit of Service drafted, sworn, and commissioned. Keep in mind, all materials that are served must be filed in accordance with the deadlines set out in the Rules of Civil Procedure.
- REQUEST YOUR FIRST COURT APPEARANCE
You may now request a hearing date with the court! In Toronto, you will usually have to attend a scheduling appointment prior to a hearing. This court appearance will generally only deal with procedural issues such as scheduling and timetabling. To request a scheduling appointment, you should email the trial coordinator and submit your request form which will include several dates that the court can set your scheduling appointment for. The trial coordinator will then confirm the date of your first court appearance, and you are all set to go!
Please keep in mind that the court rules are subject to change at any time. It is best practice to review the Practice Directions before going to court. You may access Toronto’s Practice Directions by clicking here.
Stacie Chrysanthopoulos
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Oct 19, 2023
Earlier this month, Greg Miller joined the Firm as an articling student. Greg is a graduate of Western Law, with distinction. He is an exceptional researcher, has a keen interest in litigation, and is an overall pleasure to have on our team. Welcome, Greg!
Greg can be reached at
Email: gmiller@caseyandmoss.com
Phone: 647.368.6556
