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 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.
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.
