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.
Feb 28, 2024
When I first started working with Angela Casey, she had a small, dog-eared poster of a car and a bike on her office wall. Under the picture of the car were the words “this one runs on money and makes you fat” and under the bike was written (you’ve guessed it), “this one runs on fat and saves you money”. A silly saying that stuck in my mind as I observed my co-worker energized and happily commuting by bike while I dragged myself to and from the bowels of the subway. Intrigued though I was, I thought it would be too difficult for me to bike from Etobicoke.
In 2013, I had just come back from a second maternity leave after having my son. Like many new parents, I was feeling pretty defeated by a lack of personal time. I was out of shape. Despite a supportive spouse, I couldn’t find my way around getting to a gym or carving out time to workout at home. So I bought a cheap bike and planned out my route.
The first ride was hard. I had to stop midway to catch my breath. But I was also exhilarated: speeding along Lake Ontario, a sunny, perfect June day, feeling stupidly accomplished and content. More than a decade later, despite the occasional spill and stolen bike seat, biking to the office is usually one of the best parts of my day. There is something about exercising and being outside that lifts the mood and clears the mind.
Each year, Baycrest raises funds for dementia research through a charity bike ride on the Gardiner and DVP. Research is continuing to establish that there is a connection between exercise and brain health, so the event is a fitting one. Our firm has participated the last two years and we’ll do so again this year. Some of our family members are participating too. My 11 year old son is already talking about the tasty corporate team buffet at the end. Whatever gets you motivated to get moving is a good thing IMHO.
Angelique Moss
Partner, Casey & Moss LLP
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 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.
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.
