Sep 15, 2023
In the world of estate litigation, it’s common for matters to settle before they go to trial. Sometimes matters are resolved through settlement negotiations and, other times, matters resolve at formal mediations facilitated by a neutral mediator.
Settling litigation, whether early in the process or on the eve of trial, generally comes as a relief to clients; it means the end of what is frequently an emotionally exhausting and stressful process, not to mention a costly one.
But what happens after you’ve reached an agreement to settle with the other side? What steps do the parties have to take to wrap up the litigation so everyone can move on?
Once the parties agree, in principle, to a settlement, it is important to document the terms of that settlement in writing. This document is typically called the Minutes of Settlement.
Usually, one lawyer will prepare a draft of the Minutes of Settlement and the lawyers on the other side will review and provide their comments. Lawyers will go back and forth until everyone agrees on the Minutes of Settlement.
The Minutes of Settlement are where the lawyers turn their mind to the many minutiae of settlement that the parties may not have contemplated in their agreement, but that are critical to the settlement. For example, does a settlement payout include taxes? Who is going to pay each party’s legal fees? Now that the litigation is settled, who is going to file with the court the motion dismissing the court proceeding?
If a settlement is reached at mediation, the lawyers often try to get the Minutes of Settlement drafted and signed by all parties before the end of the day, although sometimes this just isn’t possible. Generally, the longer it takes to draft Minutes of Settlement and get them signed, the more likely it is for the settlement to fall apart.
In addition to drafting Minutes of Settlement, the lawyers will also prepare a Full and Final Release for the parties to sign. The Release is intended to ensure that no one can ever re-litigate the issues resolved in the settlement. The Release may also have a confidentiality clause or a non-disparagement clause.
Another consideration is whether the settlement involves a minor or an incapable person (called a “person under disability”). If so, before the settlement is finalized, counsel for the party under disability must bring a motion or application and file evidence to satisfy the court that the proposed settlement is reasonable and in the best interests of the party under disability.
Once the Minutes of Settlement and Releases are finalized, you’re not done quite yet. The lawyers for each side must make sure that their clients comply with any timelines set out in the Minutes of Settlement. For example, Minutes of Settlement may include deadlines for paying settlement funds, for dismissing a court application, for applying for probate, for moving out of a property owned by an estate, or for listing a property for sale.
If any party fails to comply with the terms of the Minutes of Settlement, the other side may bring a motion before the court enforcing the terms of the settlement.
While reaching a settlement means the end of litigation and is something to celebrate, for the most part, it takes a little more work to get things over the finish line.
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.
Sep 5, 2023
Leaving a steady pay cheque and reputable firm to partner with Angelique Moss and start our own practice was one of the scariest things I ever did. But I now see that my fear was out-sized in proportion to the actual risk I was taking. Looking back, my initial ideas about why we couldn’t possibly start our own were misplaced:
1. I thought I wouldn’t be able to get health insurance. My husband is a transplant recipient. The anti-rejection drugs to keep him alive cost a LOT of money. I wrongly assumed that I would not be able to obtain health insurance. It turned out that as a firm of just two people, we qualified to buy health insurance through the CBA.
2. I didn’t have a full practice. This was a huge one for me. I couldn’t fathom that I could possibly wean myself from the source of more than half of my work. In my mind, I first had to achieve originating 100% of my own work before I could even consider going out on my own. But when I did the math, I realized that I would only have to generate a relatively small amount of billable work each day to pay our modest initial expenses, including draws equal to our former salaries.
The other eye opener was that people suddenly viewed me differently once I shedded the identity of “So-and-So’s Junior” and took a seat at the first chair. Work came because I had the time and space to find my own clients to serve. The result was that Angelique and I were both immediately able to generate a full practice. Within a year, we had so much work that we were looking for another lawyer to join us.
3. I did not have six months’ worth of living expenses saved up. In fact, I had no living expenses saved up and I was the sole income source in my family. We started the firm with a loan. A colleague gave us wise advice to make a discipline of billing early and often. It worked, and we started to cash flow right away.
4. I loathed risk. My dad lost two businesses and never financially recovered. Having lived that experience, I valued income security. My mindset at the time was that starting a law firm was a huge risk. A major breakthrough came when another small law firm owner said to me, “What is more risky, having just one employer who could terminate your employment at any time, or having dozens of clients? What are the chances that ALL your clients would choose to leave you at exactly the same time?” She was so right (thanks Jennifer Watson!). I also realized that owning our own firm gave us more control over the levers of client satisfaction – the workloads we took on, strategy, communication, and pricing.
5. I lacked some essential skills. As an associate in law firms, I always breathed a sigh of relief when I got to the part of the Law Society of Ontario Annual Return where I was asked whether I was the person responsible for filing the annual financial requirements and I could type in someone else’s law society number. But I realized that we could get help with the things that we were not good at. We have an excellent bookkeeper who understands the bookkeeping requirements of the LSO. We work with a technology specialist who is so responsive that it is akin to my days in Big Law where I just had to dial an extension to get technological help (which was often). I realized that Angelique and I didn’t need to have these skills ourselves. And we didn’t even need to employ these folks on a full-time basis. We simply needed to connect with the right professionals to fill our knowledge/skill gaps and pay for as much of their time as we needed.
Every time a great female colleague in estate litigation leaves private practice, I get a little sad. If that was her dream, then I am genuinely thrilled for her. But if the choice was dictated by the unbearable weight of trying to overcome the barriers that still exist for women in many traditional law firms, I hope more of us will consider the option of creating (or joining) something new.
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.
Aug 25, 2023
When your spouse passes away, you often have way too much on your plate to worry about money. However, once the time comes to deal with your finances, it is important to know what options you have available under current Ontario legislation.
If your spouse had a valid Will when they passed away, you can easily collect your entitlement. However, if for some reason this is not what you were hoping for, rather than challenging the Will or going through the trouble of a dependant support claim, you can choose to use the Family Law Act (FLA) to your benefit.
Under s.6 of the FLA, surviving spouses have the right to choose between their entitlements under the Will, or claiming an ‘equalization payment’ as if they were getting a divorce. This is called spousal election.
Now, determining the value of an equalization payment can be a little tricky, especially once tax implications become involved. Generally speaking, this payment will be comprised of the difference between each spouse’s net family property (NFP). If the deceased spouse has a higher NFP, the surviving one is entitled to that difference.
Therefore, it is in the surviving spouse’s best interest to minimize the value of their NFP as much as possible.
Deducting Disposition Costs in NFP Calculations
If there is a large asset that will be expensive to liquidate, a common issue is how to add this to the NFP. Can this asset’s value be reduced by listing the ‘capital gains’ as a liability, even if the asset is not disposed of just yet?
This was one of the issues in a 1994 Ontario Court of Appeal case called Sengmueller v. Sengmueller. Here, it was noted that tax consequences are appropriate to take into account when determining net family property amounts.
However, strict rules apply:
- “There must be satisfactory evidence of a likely disposition date of the assets.”
- “The costs of disposition will be inevitable when the owner disposes of the assets or is deemed to have disposed of them regardless of whether the asset needs to be realized to make an equalization payment.”
So, for example, if a surviving spouse is about to sell her home, ‘capital gains’ can be listed as a liability as of valuation date, regardless of whether she needs to sell the home or not. As long as there is enough evidence that the sale of the home is likely, the costs of this sale can be used to reduce her NFP.
This was more recently affirmed in Tremblay v Tremblay, where the court acknowledged that ‘disposition costs should be deducted in determining the value of an asset for equalization purposes unless it is unclear when, if ever, the value of the property will be realized.’ It was determined that ‘the value of the asset for equalization purposes is the net value after tax and other disposition costs’.
So, make sure to keep this in mind when deciding between spousal election or collecting your entitlement under the Will – sometimes tax law makes all the difference!
Colleen Dowling
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.
Aug 17, 2023
Have you ever been given a deadline by a litigation lawyer or by the civil court? Sometimes the deadline might have a specific end date like “September 1st, 2023”; other times you may be given a number of days like “within 7 days”, and you are left having to count calendar days. This may sound pretty straight forward but is not always as easy as 1, 2, 3…
When dealing with litigation timelines, there are specific rules to follow when it comes to counting. These rules can be found at Rule 3.01 of the Rules of Civil Procedure. Keep reading for a few tips and tricks.
Where does one start?
When counting, you do not count the initial or start date, but rather, the day after. Is that confusing? Let me break it down for you. If you receive a court order dated August 14th, 2023 and are given a deadline of 3 days, then you would begin counting as of August 15th (the day after the start date), thereby making August 15th day 1, August 16th would be day 2, and August 17th would be day 3 – your deadline!
Where does one land?
When finding your deadline, you need to pay attention to the day of the week that your deadline lands on. Using the same example above, let’s change our deadline from 3 days to 5 days. Remember that our court order was dated August 14, 2023. What happens when you count 5 days according to the Rules? You land on a Saturday. The Rules state that Saturdays and Sundays are “holidays”. What happens to your deadline if it lands on a holiday? Is the deadline null and void? Absolutely not. Your deadline gets moved to the next day that is not a holiday, and in our example, that would be Monday August 21st, 2023.
What day is next?
Another important thing to note about holidays – holidays shall not be counted if you are given a deadline of 7 days or less. A complete list of other “holidays” can be found at Rule 1.03(1) of the Rules. What happens when your counting runs into a holiday? If it’s 7 days or less you skip over the holidays. Looking at the same example one more time, if you have a deadline of 7 days from August 14th, the deadline would be August 23rd. We have counted each day and skipped over the holidays, Saturday and Sunday. Remember to watch out for civic and statutory holidays which can throw off your deadlines too.
When does it end???
Deadlines of more than 7 days become a little less complicated to compute as you include all calendar days, even holidays, when counting making things a little more straightforward. The only real complication with longer deadlines (20 days, 45 days, 75 days) is you may find yourself endlessly counting days and days, giving yourself more room for error. For long deadlines, I like to use an online day counter like this one. Remember to keep in mind that although you’re not skipping holidays when counting, you still need to be mindful of a deadline landing on a holiday and move your deadline to the next day that is not a holiday.
Where does the time go?
Do you have to keep an eye on the clock? Yes! You may be thinking that you have until midnight to submit, serve or file your documents, but that would make you late on your deadline. Your second guess might be 5p.m. That is of course the usual end of business time, but again, if you submit, serve or file your documents by 5p.m. you will also be late. The deadline to serve and file is actually 4p.m. If you play the stock market, you may be comfortable with the 4p.m. deadline. So just remember you need to serve, file and trade all by 4 p.m.
Thanks for reading and happy counting.
Lucy Goytisolo
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.
Jul 28, 2023
Reviewers noted that the team is highly regarded for its “contentious private wealth offering” and the following strengths: .
“The Casey & Moss team are smart litigators, sensible and practical.”
“Casey & Moss has great client service”
Congrats to all of the firms recognized this year!
