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.
Mar 7, 2024
I am grateful to Jan Goddard and Yasmin Vinograd for inviting me to be a panelist at the Annotated Guardianship Application program on March 6, 2024. They obviously put a lot of thought and care into choosing interesting topics and great speakers. Each time I participate in the program, I end up learning new things from the other speakers and panelists:
Meredith MacLennan offered three tips for registering guardianship orders on title. Guardianships sometimes arise in situations where the vulnerable person is already being financially exploited. As a guardianship lawyer, I have seen unfortunate situations where vulnerable adults have signed paperwork that is manifestly against their best interests at someone else’s behest. Even with a guardianship order in place, there is nothing stopping a wrongdoer from manipulating an incapable person into signing documents to take out a mortgage or transfer title. Registering the guardianship order on title gives notice to anyone seeking to lend or purchase the home that the owner has a substitute decision maker. However, I learned yesterday that from a conveyancing perspective, this is not as easy as it sounds. Meredith’s top tip was to ask the court for a stand-alone order to register on title because the standard Judgment appending a management plan will not be accepted for registration.
Arthur Fish and Alexander Procope spoke about how to help litigants find an off-ramp from the destructive road of guardianship litigation through alternative dispute resolution. I especially valued Arthur Fish’s insights about delving into the family history of high-conflict/low resolution families to uncover the trauma that is truly driving the family conflict.
Various speakers answered some tough questions from the audience, like whether “joint and several” guardianship appointments are possible (Lisa Filgiano clarified they are not). Doreen So shared an example from her own practice where she came up with a creative partial guardianship solution when a Florida property could not be transferred utilizing an Ontario power of attorney.
The program was chock full of practical advice on how to do a guardianship application from the first meeting with the client through to closing your file. The annotated precedents have been expanded over the years to include a retainer letter, a Notice of Application, an affidavit, a management plan, a guardianship plan, a closing letter, and a Judgment. The program is still available for viewing through the LSO, and I highly recommend it.
Angela Casey
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.
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
