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
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.
Jan 9, 2024
On January 1, 2022, various amendments to the Succession Law Reform Act (“SLRA”) came into effect as part of Bill 245, the Accelerating Access to Justice Act. As part of those amendments, Bill 245 repealed subsection 15(a) and section 16.
Before December 31, 2021, sections 15 and 16 of the SLRA provided that a testator’s marriage had the effect of revoking their Will, except in some specific circumstances:
Revocation generally
15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;
…
Revocation by marriage
16 A will is revoked by the marriage of the testator except where,
(a) there is a declaration in the will that it is made in contemplation of the marriage;
(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.
In the current version of the SLRA, those provisions simply do not exist. A reader will find instead the note “Repealed”, followed by the citation for Bill 245, as shown below:
Revocation generally
15 A will or part of a will is revoked only by,
(a) Repealed: 2021, c. 4, Sched. 9, s. 2.
(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it. R.S.O. 1990, c. S.26, s. 15; 2021, c. 4, Sched. 9, s. 2.
16 Repealed: 2021, c. 4, Sched. 9, s. 3.
There is no transition provision, meaning there is no provision specifying that marriage revoked a Will for marriages prior to January 1, 2022, or any other date. The law for decades was that marriage revoked a Will. But, in the current law there is no indication that was ever the case.
This is in contrast to other changes to the SLRA made by Bill 245, where the amendments included specific language indicating when the changes are to take effect. For example, Bill 245 added section 43.1 to the SLRA, which provides that separated spouses do not inherit on the intestate death of their former spouse. The transition provision for this section specifies that section 43.1 only applies if the event that constitutes the separation (for example, the day the couple began living separately, or the date of their separation agreement) occurred after December 31, 2021.
What is the effect of the complete revocation of sections 15(a) and 16, with no transition provision? If a person made a Will in 2020, married in 2021, and died in 2022, was their Will revoked by marriage, because the law at the time of the marriage was that the Will was revoked? Or, is the applicable law that at the time of death, and therefore the revocation-by-marriage would only take effect if the person had died before December 31, 2021, when sections 15(a) and 16 were in force?
The consensus has been that the relevant time is the time of marriage. Commentary on the revocation provisions consistently states that the changes brought in by Bill 245 only apply for marriages on or after January 1, 2022. The current probate forms draw a distinction between marriages before and after Jan 1, 2022: the applicant is required to say if the marriage was before or after that date, and if before, to explain why a prior Will was not revoked.
No court decision has addressed this question directly, but in the reported case law, judges seem to operate on the same basis: if sections 15(a) and 16 were in effect at the time a person’ married, their existing Will was revoked unless the section 16 exceptions applied.[1]
But does this make sense?
The general rule is that a Will speaks from the time of death, and before death a Will is merely a piece of paper. Courts will not consider the validity of a testamentary document until after the person has died. It seems counterintuitive, then, for the applicable legal landscape in this situation to be the time of marriage, rather than the time of death.
Further, if the legislature’s intention was for the pre-2022 marriages to continue to be treated as revoking prior Wills, would the legislature not simply have amended sections 15 and 16 to include a transition provision, specifying it only applied to marriage prior to Bill 245 coming into effect?
The law for decades was that marriage revoked a Will. But, in the current law there is no indication that was ever the case. The complete revocation of the provision suggests that the legislature intended for any Will for a Deceased who died after December 31, 2021, to have survived a subsequent marriage.
The answer will ultimately be a matter of statutory interpretation in a case where the issue is before the court. The principles in this area are complex, and are detailed at length in E.A. Driedger’s article “Statutes: Retroactive Retrospective Reflections“, 1978 CanLIIDocs 18, for anyone looking for some light reading. Sullivan on the Construction of Statutes, by Ruth Sullivan also contains an entire chapter on the “temporal application” of statutes, and how it is to be determined.
In general, there is a presumption against legislation applying “retroactively,” defined as applying “so as to change the past legal effect of a past situation.” There is also a presumption against the removal of already vested rights. However, there is an important distinction drawn between retroactive application, which changes the past effects of past situation and legislation, and what is often referred to as “retrospective” legislation, which attaches new consequences for the future to an event that took place before the legislative change.[2]
Arguably, Bill 245 does the latter, and merely changes the current effect of a past marriage. No right can be said to have vested prior to the testator’s death, since the Will does not create any rights, or have any effect prior to the testator’s death.
Nevertheless, what a court decides remains to be seen.
Laura Cardiff
[1] See, for example, Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315 (CanLII) at para 5. It was an agreed-upon fact in that case that the Deceased’s marriage in the year 2000 had revoked his last Will. The issue was whether it was subsequently revived.
[2] See Benner v Canada, [1997] 1 SCR 358 at paras 39-40, citing Driedger.
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.
