Apr 18, 2024
As someone who considers themselves to be creative, whether that’s painting nail art or finding the right outfit, it all boils down to having the right color, fit, and the perfect pair of shoes to get the job done.
The same can be said about being a law clerk at Casey & Moss. Over the last 6 years, I have learned the following formula for a happy working environment:
Passion/Interest: Enjoying the work you do and being motivated to do it goes a long way. It allows you to not only do the work but also find joy in doing it. It also impacts the quality of your work you provide to clients when you have a genuine interest in the task at hand.
Organization and Planning Ahead: “If you fail to plan, you plan to fail”—at least that’s what they always say. Keeping track of court dates, deadlines, and limitation periods along with your everyday tasks can pile up and overwhelm you if they are not carefully organized. Set priorities for your tasks, make a to-do list, and find a work plan that helps you get through your files. One thing I aim to do is skim through my emails at the start of the day, delete any junk or promotional emails, and move emails that do not have a task attached. For emails that do have a task, I determine if it will take one minute (saving a document or a simple reply) or if it might take 30 minutes (drafting an affidavit and supporting documents).
A Little Creativity: Sometimes the task at hand requires a little creativity or a new approach. Start by discovering new ways to operate the software and programs that your firm currently uses to improve your productivity and quality of work. When I first started, I had no idea how to use a MacBook, but not only did I learn the basic functions to get the work done, but I also found shortcuts, quick keys and steps that made what I needed and wanted to do much easier.
Expect the unexpected and adapt to change: Life is unpredictable, and so is work. A last-minute court date, a new file with a fast-approaching limitation period or a settlement can change the plan for the file. Sometimes things happen that change the course of the work that we have already started and learning to adapt to that change and work to accommodate the new plan helps to alleviate potential stress. My motto when I have a heavy workload for the week or even the month is “take one step at a time” and “thank you, Jesus.” It reminds me that I’m human and gives me peace.
Take a Break: In everything, there should be balance and burnout is real, so take a break. Use your vacation days and relax. When you leave work, remember to enjoy your life, go to the gym, go to the movies, take a nap, go swimming, go to church, and clock out and have fun. Life is all about balance; remember to find it.
These are just a few things that have worked for me in the past and still work now. Happy clerking.
Olesya Johnson
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.
Apr 12, 2024
On April 8th, the whole city stopped what it was doing while we watched, through the clouds, as the total eclipse darkened the skies for almost five minutes.
At Casey & Moss, some of us watched the eclipse with colleagues from our downtown Toronto office building. Some of us stayed home with our kids and watched fro
m our backyards. Others travelled out of the city to the path of totality where we managed to find clear skies. As we watched, wherever we were, we all shared our photos and reactions with each other.
The eclipse was a unique moment of connection with our colleagues, neighbours, and community. We wanted to share some of the photos that our team captured during that moment.
Capturing the Full Eclipse
The Eclipse Over the Skyline
Fun Eclipse Glasses
Just Before the Full Eclipse
Cara Zacks
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.
Apr 1, 2024
Dying with Dignity Canada is a charitable organization that is 100% funded by private donations. The work of their national chapter is probably best known. It engages in advocacy, in particular to expand access to Medical Assistance in Dying (MAID). However, Dying with Dignity’s local chapters are committed to community education on a variety of topics related to end of life, including how to access care, what the available options are, what questions to ask and what information to consider in decision making. This is practical, accessible information that can be of real use to families faced with tough decisions. As a starting place, their website has a variety of information and educational resources.
Local chapters run lunch and learn sessions and other educational seminars, and will respond to enquiries for private sessions geared towards a specific audience. Their sessions can educate attendees on palliative care and practical tips for individuals and their families trying to get the best care that will meet their goals, whatever those may be and in their individual circumstances.
Laura Cardiff
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.
Mar 25, 2024
Before placing title to your home, bank account or investments into joint ownership with another person, it’s important to understand the financial and legal risks involved. These transactions are regularly the subject matter of costly litigation, particularly when the recipient does not contribute financially in exchange for receiving the interest – a ‘gratuitous transfer’. When these disputes reach court, a key question for the judge is the transferor’s reason for making the gratuitous transfer.
Why might you want to gratuitously transfer ownership of an asset into joint tenancy?
1. As a Gift
On your death, ownership can go directly (by right-of-survivorship) to the surviving joint-tenant – for example your spouse or child – without passing through your estate. This means probate fees are avoided, as well as the inconvenience and delay of estate administration.
The gift has two varieties[1]: a “True Joint Tenancy”, where you confer upon the recipient immediate ownership rights that are equal to yours and the “Gift of the Right of Survivorship” where you maintain exclusive control of the asset during your lifetime[2]. In either case, what remains (if anything) of the asset upon your death becomes the sole property of the recipient, by right of survivorship.[3]
2. For Convenience
The gratuitous recipient is placed on title to assist you with managing the asset, but has no true, or beneficial, ownership rights. If you die first, the recipient becomes the sole owner in name (by right-of-survivorship), but he or she is obligated, as a trustee, to return the asset to the beneficial owner – your estate.
Somewhat bewilderingly, the legal documents giving effect to these transfers (e.g. real estate conveyancing documents, bank account opening paperwork) usually fail to specify whether beneficial ownership rights are being conferred. In other words, there’s no way of telling from the official documents what the transferor’s reason was for creating the joint tenancy – gift, or convenience[4]. This ambiguity about ownership creates a foothold for future litigation. Often the dispute arises years or decades later, when the transferor dies and his or her heirs proceed to challenge the ownership of the surviving joint tenant (to whom title has passed by right of survivorship), on the basis that the deceased never intended a gift, such that the asset really belongs to the deceased’s estate. I call this scenario the ‘fight of survivorship’.
There is need for reform in both commercial practices and the law, but until then, what can you do to minimize the risk of future problems when making a gift using joint ownership? Simply put, never make such a transfer for the second reason mentioned above (i.e. for convenience), as that is precisely what powers of attorney are for. The attorney for property has an obligation to manage your asset (or finances generally, depending on the scope of the power of attorney) in your best interests, but granting a power of attorney carries no possible suggestion that ownership rights have been affected.
A gift is the only good reason for making a gratuitous transfer into joint tenancy. Your gift intent should be clearly documented at the time you establish the joint tenancy. In your will (or a codicil thereto) you should specifically state that you want your jointly-held interest to pass by right of survivorship, and not to form part of your estate. Or you could instead write a letter expressing your desire to make a gift, and have the letter held in safekeeping by your lawyer, or by the transferee, who could produce the letter should his or her ownership ever be disputed[5]. Whatever method you use to document your intent, always be clear whether you intend a “Gift of the Right of Survivorship” or a “True Joint Tenancy”.
Though a gift is the only good reason for making a gratuitous transfer into joint tenancy, this doesn’t mean that joint tenancy is necessarily the right way to make a gift. On a $1,000,000 asset passing by right-of-survivorship, your estate would save roughly $15,000 in probate fees, compared to the same gift made by will. But a gift in a will can be undone or changed at any time prior to your death (if you still have the necessary mental capacity), whereas a gift made using joint ownership is irrevocable[6]. And with joint ownership, there are financial risks, like your jointly held interest being exposed to the claims of creditors of the recipient joint tenant, or abuse by the recipient who could potentially drain all the funds in a joint bank account or encumber a joint property without your consent[7]. Finally, as explained above, litigation tends to loom over gratuitous transfers into joint tenancy – but with the information and tips contained in this blog post this risk can be greatly reduced.
Greg Miller
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.
[1] Kennedy v Smith, 2022 BCSC 1622 outlines the types of joint tenancies that can result from a gratuitous transfer.
[2] In Pecore v Pecore 2007 SCC 17, the Supreme Court established that the Gift of the Right of Survivorship, although appearing testamentary in nature, is really an immediate inter-vivos gift to the gratuitous transferee consisting of what remains, if anything, of the subject matter of the gift upon the gratuitous transferor’s death, if the gratuitous transferee survives the transferor (at para 48).
[3] If the recipient should predecease you, his or her ownership interest is extinguished, and you once again become the sole owner.
[4] However, RBC Dominion Securities offers both a True Joint Tenancy investment account, and a Gift of the Right Survivorship investment account (using their own nomenclature). Providing a choice of joint accounts, with clear descriptions of the rights of the parties during their lives and upon the death of the first joint tenant, makes great sense and reduces the risk of future litigation.
[5] See Feldman J.A.’s helpful description of the options for documenting a gift intention at para 83 of Saylor v Madsen Estate 2005 CarswellOnt 5896
[6] See Pecore, supra note 2 at para 56. Although these gifts are irrevocable, they can be effectively ‘defeated’ if the transferor depletes the asset prior to his or her death (for example by draining a bank account to a $0 balance).
[7] In a True Joint Tenancy there might be nothing improper about this, since both joint-tenants have equal rights to the asset (and each joint-tenant is considered to own 100% of the whole). With a Gift of the Right of Survivorship, though the recipient is not meant to be able to exercise control during the transferor’s lifetime, there is still a risk this could happen since the recipient is on title.
Mar 15, 2024
In the process of enforcing a Judgement, debtors sometimes prove elusive and play hard to get, making the pursuit of what’s rightfully yours extra difficult. However, there is a simple but strategic move that might just turn the table around – garnishing the debtor’s bank account.
Step 1: Locate and Read the Cheque
To garnish the debtor’s bank account, your first move is to investigate the account details. Starting by combing through past financial transactions between the creditor and the debtor, particularly those involving cheque payments, can be the game-changer. If the debtor has made any payment by cheque, you can use the cheque as evidence to support your belief that the debtor holds bank account(s) at the financial institution. In case the original cheque is lost, don’t worry – your bank can provide transaction records, which will include an image of the cheque.
On the cheque, essential information such as the address of the debtor, the information of the financial institution (name and address), and the bank account information can be found.
The bank account details can be found within the string of numbers at the bottom of the cheque, including the 5-digit transit number which identifies the branch where the account was opened; the 3-digit financial institution code; and the 7 to 12-digit account number which specifies which bank account where the money will be withdrawn from. Please note that the cheque number at the top right corner might also be found at the bottom left corner.
In case where no payment has been made by the debtor, it is crucial to gather as much information about the debtor’s financial situation as possible. You should seek legal advice and conduct an Examination in Aid of Execution.
Step 2: Requisition for Garnishment
As per Rule 60.08 (4) of the Rules of Civil Procedure, the creditor shall file a Requisition for Garnishment (Form 60G), a copy of the Judgement, an Affidavit, Notice of Garnishment (Form 60H) and a blank Garnishee’s Statement with the registrar.
The Garnishee is a third party that holds property of the debtor that can be used to satisfy the debtor’s debt, in this case, is the financial institution holding an account for the debtor.
The information discovered from the cheque becomes the key to prepare the legal documents, such as the name and address of the financial institution, as well as the debtor’s bank account information which should be detailed in your Affidavit. You also need to calculate the principal owing amount as well as the post-judgement interest to-date. Check our previous blog post to see how to calculate post-judgement interest.
Two important notes: First, a Notice of Garnishment can only name one debtor and ONE Garnishee. If multiple entities own debt to the debtor, prepare separate Notices of Garnishment to each of the Garnishees. Secondly, the filing should be made where the court proceeding (resulting in the Judgement being enforced) was commenced, as the registrar will forward a copy of the issued Notice of Garnishment to the Sheriff where the debtor resides. You can find the Sheriff’s office address and district via the link here, provided by the WritFiling website.
Upon receiving the issued Notice of Garnishment, serve it with a blank Garnishee’s Statement to the Garnishee (the local branch of the financial institution); also serve it with a copy of the Affidavit on the debtor.
Step 3: Issuance of the Garnishment Cheque
The Garnishee is required to pay the funds in the debtor’s account to the Sheriff’s office within 10 days after being served with the Notice. This payment should be made by a bank draft payable to the Minister of Finance. Once the cheque is cleared, the Sheriff’s office will issue the cheque to the creditor or the creditor’s counsel.
In some special cases where the debtor’s account is jointly owned, the creditor will be notified by the Garnishee and must serve the co-owner a Notice to Co-owner of the Debt along with a copy of the Garnishee’s Statement. In these circumstances, the creditor should seek legal advice from a lawyer.
When your debtor plays hard to get, garnishing his or her bank accounts would be the strategic move to go!
Jennifer Jiang
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.
Mar 7, 2024
This blog post expands on Adam Giancola’s blog series about the role of litigation guardian at common law.
If your loved one is involved in litigation but lacks the capacity to understand and make sound decisions related to their court proceeding, or is a child under the age of eighteen, they will require a litigation guardian to participate in litigation. All litigation guardians must be over the age of eighteen.
A litigation guardian steps into the shoes of the party under disability and makes decisions arising from the litigation on that person’s behalf. It is a considerable and often demanding role, but one that is critically important to safeguarding the interests of parties under disability in Ontario.
Getting Started
Under Rule 7.02(2) of the Rules of Civil Procedure, any person who wishes to act as a litigation guardian, except the Children’s Lawyer and Public Guardian and Trustee, must file an affidavit with the court with the following information:
- the proposed litigation guardian’s consent to act as litigation guardian;
- confirmation that a named lawyer has been given written authority to act in the proceeding;
- evidence regarding the nature and extent of the disability;
- where acting for a minor, the minor’s birthday;
- whether themselves and the person under disability are Ontario residents (the proposed litigation guardian is not strictly required to live in Ontario, but this is a factor for the court to consider);
- their relationship to the person under disability (you do not have to be a family member);
- whether the proposed litigation guardian has an interest in the proceeding adverse to the person under disability; and
- acknowledges that they have been advised they may be liable to personally pay a costs award against the person under disability.
Responsibilities
The Rules of Civil Procedure sets out various requirements for litigation guardians:
- Litigation guardians, other than the Children’s Lawyer and Public Guardian and Trustee, must be represented by a lawyer. These fees are to be paid from the party under disability’s assets.
- All litigation guardians “must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests”. Procedurally, this means ensuring that the correct procedures are followed. Substantively, this means acting reasonably and properly for the benefit of the person under disability.
- The litigation guardian, on behalf of the party under disability, may only enter settlements that are in the best interests of the person under disability. Where there is a party under disability, judicial approval of the settlement is required and courts will only approve settlements that are in the best interest of that person. A lawyer will provide the litigation guardian with advice on what settlements may or may not be in the party under disability’s best interest.
It is also important to understand where the role of a litigation guardian starts and ends. A litigation guardian is not the same as a guardian or attorney for property or personal care. A litigation guardian’s role does not extend beyond issues within the litigation. Unless they are also an attorney or guardian of property, a litigation guardian cannot manage or hold the property of the person under disability, which includes settlement funds.
Risk
In litigation generally, the losing party is responsible for paying a reasonable share of the winning party’s legal fees; this is called a “costs” award.
As discussed above, there is a risk that a litigation guardian could be personally liable for costs awards against the person under disability. The reason for this is to prevent litigation guardians from acting frivolously or improperly at the expense of the party under disability.
This risk is why it is especially important for litigation guardians to hire competent, trusted counsel to provide advice on how to act reasonably and appropriately during litigation.
Rebecca Suggitt
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.
