PROCEDURAL STEPS ON COMMENCING AN APPLICATION WITH THE TORONTO ESTATES LIST

Nov 6, 2023

The Superior Court of Justice is one of the busiest courts in the world, so commencing a court application can be intimidating and confusing to people who are not familiar with the procedures of the court. The Toronto Estates List is a branch of the Superior Court of Justice which hears matters such as will challenges, passing of accounts, and guardianship applications (just to name a few). Below you will find the simplified steps of commencing a court application with the Toronto Estates List:

 

  1. DRAFT YOUR MATERIALS

Your application materials will consist of a Notice of Application along with an Affidavit and together these two documents will form your application record. The Notice of Application will set out the grounds of the application and the relief that you are seeking. The applicant of the proceeding will swear their own Affidavit which details the facts of the case. A lawyer will usually draft these materials for you, but if you are self-represented it is your responsibility to draft your materials as you will need to serve them on the opposing party. Your application record will also be relied on by a Judge when your matter goes to court.

 

  1. ISSUE YOUR NOTICE OF APPLICATION

Now that your materials are finished – you can have your Notice of Application issued with the court. Your Notice of Application can be issued electronically via the Justice Services Online website which can be found here. If your materials are successfully accepted by the court, you will receive an email confirmation enclosing the issued copy of the Application which includes the court stamp and court file number.

 

  1. SERVE AND FILE YOUR MATERIALS

Now it is time to serve your materials on the Respondent(s). A Notice of Application is an originating process, meaning that you are required to serve the Respondents by personal service as stated in Rule 16.01 (1) of the Rules of Civil Procedure. After serving all the Respondents, you will need to have your Affidavit of Service drafted, sworn, and commissioned. Keep in mind, all materials that are served must be filed in accordance with the deadlines set out in the Rules of Civil Procedure.

 

  1. REQUEST YOUR FIRST COURT APPEARANCE

You may now request a hearing date with the court! In Toronto, you will usually have to attend a scheduling appointment prior to a hearing. This court appearance will generally only deal with procedural issues such as scheduling and timetabling. To request a scheduling appointment, you should email the trial coordinator and submit your request form which will include several dates that the court can set your scheduling appointment for. The trial coordinator will then confirm the date of your first court appearance, and you are all set to go!

 

Please keep in mind that the court rules are subject to change at any time. It is best practice to review the Practice Directions before going to court. You may access Toronto’s Practice Directions by clicking here.

 

Stacie Chrysanthopoulos

 

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. 

CASEY & MOSS WELCOMES GREG MILLER

Oct 19, 2023

Earlier this month, Greg Miller joined the Firm as an articling student. Greg is a graduate of Western Law, with distinction. He is an exceptional researcher, has a keen interest in litigation, and is an overall pleasure to have on our team. Welcome, Greg!

Greg can be reached at
Email: gmiller@caseyandmoss.com
Phone: 647.368.6556

TMI? WHAT YOUR LAWYER NEEDS TO KNOW TO COMPLETE A PROBATE APPLICATION

Oct 5, 2023

Sometimes we might feel that a single detail of our loved ones’ lives is of no importance when it comes to managing their estate, but every detail has its place.

Whether they died with or without a will, here’s a list of important information not to ignore:

1. Names: Include the full legal name of the deceased as it appears on their passport or driver’s license.

You should also provide any additional names that might be on their will, if there is one, or a death certificate if that information is different from their legal names.

For Example. Johnny Lee Williams is James Allan Williams, or Mikey is Michael.

Nicknames are great and hold sentimental value and endearment towards our loved ones, so keep that information close to your heart as it won’t be used in the application unless it’s listed in the will, codicil, or official documents.

This also applies to the legal names of the beneficiaries.

2. Marital Status: Previous Marriages, Divorces, Separations, and Common-Law Partners

Give us all the juicy details. Your lawyer will need to know their current marital status and if there are any additional statuses from the past.

For Example. Michelle divorced Mike in 2008 and is currently in a common-law relationship with Justin.

This allows us to provide the most accurate information on the application and lets us know if any additional documents need to be prepared and included in the application.

3. Children: If the deceased died with a will, the will would likely include the names of their children if they were listed as beneficiaries under the will, but in some instances, the will might say “To all my children”.

In the case where no children are specifically named in a will or there is no will, you should provide the following information: names of all the children, date of birth, address, and emails or phone numbers. If the child is a minor, then we would need the contact information for that child’s parent or guardian.

4. Beneficiary’s Relationship to the Deceased: Beneficiaries of an estate can include the deceased spouse, cousin, child, uncle, brother, sister, friend, or even their pastor. Along with knowing how the beneficiary is related to the deceased, we also need to know if any of the beneficiaries have passed away.

5. Joint Accounts: Not only does your lawyer need to know if the deceased owned any bank accounts, but also the institution where they’re held and the value of those accounts as of the date of death. Your lawyer also needs to know if any of those accounts are held jointly and the type of joint account.

Some accounts will fall into the value of the estate and affect the amount of estate administration tax payable. Others will fall outside of the estate and have no impact on the estate tax payable.

Even though a detail may seem minor or insignificant, it may still be an integral part of the estate. The more pieces we have, the easier it is to complete the puzzle.

 

Olesya Johnson

 

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. 

CONGRATULATIONS ON SETTLING! NOW WHAT?

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. 

FIVE REASONS I THOUGHT I COULDN’T START A LAW FIRM (BUT WERE WRONG)

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.