Wednesday, April 08, 2020

Virtual Witnessing of Wills and Powers of Attorney Comes to Ontario During Covid-19. What Will Come Next?

BY PAUL B. ADAM, ASSOCIATE LAWYER

Last week, we brought you news about an urgent Court session that would be taking place in Ontario to address the question of whether a Last Will signed using  Zoom (or a similar service)- with the testator and the witnesses in different locations, was valid.

Preempting that Court hearing, the Ontario Government made a new emergency regulation dealing with the issue, under the Emergency Management and Civil Protection Act. The new regulation (full text here) says that for the duration of the State of Emergency declared by the Ontario Government, the requirement for Last Wills and Powers of Attorney to be signed "in the presence of two witnesses" will be satisfied "by means of audio-visual communication technology,, so long as at least one of the witnesses is licensed by the Law Society.

This is an imperfect, but necessary solution in an emergency, but it does raise some questions about the future of "virtual wills":
  • What will constitute a "signature" on the Will or Power of Attorney? Will three people need to sign versions of the document in ink, or will "electronic" signatures be valid?
  • What exactly is "audio-visual communication technology"? Are all platforms created equal?
  • Are Last Wills and Powers of Attorney signed in this manner going to be replaced with conventional documents after the emergency is over?
As we adjust to these new regulations, we should keep these principles and laws in mind:
  • For a Will or Power of Attorney to be valid, the person making it must know and understand its contents, and agree that the contents match her intentions, and must be capable of understanding what could happen to her if she signs this document.
  • A Last Will is not valid if at the time of signing, the testator is under undue influence to sign a Will, to the point that the testator feels she has no choice in the matter.
  • When two spouses are signing a Last Will or a complex Power of Attorney, particularly if they come from a blended family, have complex individual net worth, or have a marriage contract or cohabitation agreement, they may each need independent legal advice for their respective Wills, in order for the documents to be valid.
  • If a Last Will or Power of Attorney in Ontario contains a "drafting error" that seriously alters its meaning or effect, the Court may have limited ability to rectify it after the fact.
  • A Last Will made in Ontario may not cover assets owned in other jurisdictions, and vice versa, additionally, a Last Will made under these emergency conditions in Ontario may not be recognized as valid in another country or province. 
The importance of consulting with a lawyer when preparing a Last Will or Power of Attorney isn't just in having someone whose presence and signature make the document valid, it's in the ability to discuss your needs with a knowledgeable professional, who can give you qualified legal advice about how to plan your Estate and your personal affairs. 

The lawyers at Wise Law Office have been adapting to the Covid-19 pandemic with new technology and procedures to ensure that we are able to advise and assist with your Last Will and Power of Attorney during and after the crisis.

- Paul B. Adam, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Tuesday, April 07, 2020

140Law: Top 10 Legal Headlines for the Week of April 6, 2020

140Law: Here are our Top 10 legal headlines for the week of April 6, 2020.


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Monday, April 06, 2020

Legally Adulting: The Legal Issues A Pandemic Throws Your Way

Last week, Wise Law's Legally Adulting teamed up with JNF Toronto on Zoom to answer your questions about #Covid19 and the Law. 

Here is the video of the session:



- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

140Law: Legal Headlines for the week of April 6, 2020

Here are our leading legal headlines for the week of April 6,2020 from Wise Law on Twitter: 


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Sunday, April 05, 2020

15 Years of Wise Law Blog

Today is the fifteenth anniversary of this blog's existence. Thought that was worth mentioning.

To all, thanks for reading.  
- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Friday, April 03, 2020

Ontario Family Law and the COVID19 Outbreak

BY SIMRAN BAKSHI, ASSOCIATE LAWYER

The CoVid19 crisis has raised a multitude of new legal isues in virtually every area of the law.

For those with family law concerns related to child residency, custody, access and support, the need for guidance is particularly urgent. This is particuarly true with continuing court closures and apparently insurmountable, practical barriers to obtaining any of the usual legal remedies that family courts provide.

While nothing is certain, in terms of how courts will ultimately decide on these many new issues, we are receiving many enquiries, and will do our best to provide workable answers to some of the most common questions we are receiving. 

Q: Do we need to follow our regular access schedule during the Covid-19 outbreak?
The underlying presumption remains that parties will comply with the regular access schedule established by Court order or by agreement, subject to any modifications necessary to ensure the wellbeing of a child(ren).
The question of how access should be exercised during this time must be determined on a case-by-case basis, balancing the interests of a child in maintaining meaningful personal contact with both parents, with the realities of the precautions necessary in the face of Covid-19.
The Court in the recent decision of Riberiro v Wright, 2020 ONSC 1829 has noted that there will be some cases wherein the custodial or access parents may have to forego physical access with a child due to:
(i)            Circumstances (i.e. if a parent is subject to self-isolation due to recent travel, personal illness or exposure to illness, the persons in the household that a child will have contact with etc.);
(ii)          Risk of Harm (i.e. if the parent has higher risk of exposure due to employment or association, or if parent or child has health complications etc.); or
(iii)         A Parent’s Lifestyle or Behaviour (i.e. a parent who has demonstrated little to no regard for safety directives set out by the government or public health officials)
It is recommended that parents consult with each other as to whether modifications to access are necessary in the circumstances, and agree upon the changes to be made.
Where physical access is temporarily suspended, parents are strongly encouraged to consider alternatives that will allow a child to continue to have some form of contact with the other parent, including regular phone and video calls and social media interactions.
If you are unable to agree upon ongoing access during this time, you should immediately seek legal advice to canvass the options available to you.
Q: My former spouse will not let me see our child due to concerns related to Covid-19, what are my options to see my child?
First and foremost, you should consider whether there are legitimate reasons to temporarily suspend physical access due to Covid-19.

While a court order or agreement relating to an access schedule should always be respected, and adhered to, these are extraordinary times, where doing so may not necessarily align with a child’s best interests.
Parents are called upon to exercise best judgment in determining how strictly the regularly access schedule ought to be adhered to in the circumstances.
If you agree to suspend physical access during this time, it is best to confirm the understanding regarding any modifications to the access schedule in writing. You should be absolutely clear that changes agreed to are temporary in nature with the regular schedule to be reinstated once safe to do so, the changes will not represent a new status quo in the parenting arrangement and will be subject to ongoing review as the Covid-19 situation evolves.

In urgent circumstances wherein a party is improperly withholding access, or insisting upon access, seriously jeopardizing a child’s welfare, this matter may be brought to the attention of a court (see “Can I still go to Court for a family law dispute”).
As the Court will only become involved on urgent matters, you should consider whether the matter can be addressed through alternative dispute resolutions, including attempts to negotiate a temporary agreement through counsel, or participation in videoconference mediations.
Q:  Can I still go to court for a family law dispute?
Currently, Ontario's courts will only become involved in a parenting issue relating to Covid-19 if it is truly urgent in nature.

In the recent decision of Riberiro v Wright, 2020 ONSC 1829 the Court provided much needed guidance as to how it will determine if a matter is urgent, requiring judicial intervention. Specifically, this will be determined on a case-by-case basis having regard for the following factors:
a.     The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.  
b.     The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
c.     Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.  
d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their child at home.
As always, parties should consider mediation, counselling or other alternative dispute resolution prior to resorting to litigation. Where possible, parties can try to resolve parenting matters amicably through direct discussions, negotiations through counsel, or participation in mediation (which may be accommodated by videoconference).
Q: My employer has shut down due to Covid-19 and I am no longer earning any employment income as a result. Am I still expected to pay child support?
The general expectation is that a parent will continue to pay child support.

Where support is to be paid in accordance with a court order, it is typically subject to enforcement by the Family Responsibility Office [“FRO”]. Serious consequences can follow where a payor falls into arrears of support obligations. This includes enforcement measures, ranging from the suspension of a driver’s license to garnishment, and in extreme circumstances, incarceration.
The extent to which FRO will be enforcing support orders during the Covid-19 outbreak is not yet clear.
It is best practice in any case to continue to pay full support, to the extent this is possible, or at the very least to pay partial support based on the income you are receiving.
We strongly recommend that efforts be made by support payors to communicate directly with their support recipients to discuss any proposed reductions to support, and that no unlateral action be taken before such disussions have occured.  Confirm those discussions - and any agreements reached - by email or text (or on Our Family Wizard, if you are using that service), so that there is a clear documentary record. 
And if you can't reach agreement, get legal advice. If you do reach an agreement, consider working with a lawyer to draft a support-reduction agreement, to document the changes you have agreed to.
Payors who are no longer working regularly due to Covid-19 will likely be expected to explore all avenues for financial support available from the government.

Under normal circumstances, a payor would need to commence a motion to change to suspend or decrease payment of support. At present, the family court is only hearing urgent matters, which may not include motions to temporarily change support.
- Simran Bakshi, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Is the "Zoom Last Will" Coming to Ontario?

BY PAUL B. ADAM, ASSOCIATE LAWYER

The Superior Court in Ontario has agreed to hear an urgent case that addresses what has become a critical issue during the Covid-19 pandemic: can a Last Will be validly witnessed  online, via Zoom, or a similar a video conference platform.

Our office has been considering implementing this procedure, and guidance from the Courts on this will be more than welcome.

The Globe and Mail has reported that the case concerns an elderly couple, that, like much of the province, has been sheltering in place during the novel coronavirus outbreak.

The couple's lawyer says that:
... she and her legal assistant witnessed the pair sign the documents over the online video-conferencing service Zoom, recording and saving a copy of the meeting. As the couple initialed and signed each page of their wills, they held them up to show the camera. Ms. Nagrani filed an application with the Ontario Superior Court of Justice on Tuesday, asking the court to declare that the procedure she used meets the requirements under the law.
The case has attracted attention because up until now, for a Last Will to be valid in Ontario, the Succession Law Reform Act has required that it must be signed "in the presence of two witnesses."

The "presence of two witnesses" has for some time been interpreted by the Court as the physical presence of the witnesses, meaning preparing a Last Will online has not been a valid alternative. Ontario courts have consistently held that they have no authority to deem a Last Will valid if it does not comply 100% with the formal requirements of the Act. 

The Court will be asked to weigh in on whether, in these unusual times, an electronic signature on a Last Will is valid, or whether the "presence" of a witness can include watching the testator by video, perhaps with certain specific requirements to be observed.

The former is already considered a valid form of Last Will in Arizona and Nevada.

However the Court rules, its impact on estate law in Ontario may be felt long after the current crisis has passed.

- Paul B. Adam, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Monday, March 30, 2020

140Law: Legal Headlines for the week of March 30, 2020

Here are our leading legal headlines for the week of March 30, 2020 from Wise Law on Twitter: 


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Monday, March 23, 2020

Coronavirus and Your Workplace: Thoughts for Employers from an Ontario Employment Lawyer

BY SIMRAN BAKSHI, ASSOCIATE LAWYER 

UPDATE: With Ontario today mandating closure of all non-essential businesses, effective March 25, we can urgently hope for updated legislation shortly, to guide employers'decisions in the face of CoVid19, and to provide much-needed income security benefits for employees. 

Pending such an announcement, however, we must assume that the current legal framework, which is discussed in part by Simran Bakshi below, remains in effect.  

That may change, both through amended laws and decisions the Courts will make, perhaps many months from now.  We will continue to provide updates, as events unfold.
- Garry J. Wise
..............

With words like “pandemic” and “state of emergency” being used to describe the novel coronavirus, it is understandable to feel a bit overwhelmed.

This is all the more true for small businesses across Ontario, who are faced with the challenge of staying financially afloat while prioritizing the health and safety of their customers, employees, colleagues and community.

Perhaps the best advice we can offer at this time is to breathe…

There are steps you can take as a small business owner to protect your business, while doing your part to protect those around you.

1. Remember that the most important aspect is to maintain the health and safety of the workplace

You will inevitably find yourself at a crossroad regarding whether to continue operations to the extent that is possible (based on applicable government regulations), or alternatively, to find a middle ground, such as facilitating remote operations from home, where suitable to your industry. 

In some cases, pre-emptively shuttering your business may appear to be your only, available option, particularly if you are subject to legal shut-down requirements in the current, mandated state of emergency.

Your duties as an employer pursuant to the Occupational Health and Safety Act, RSO 1990, c 0.1 [“OHSA”] should be at the forefront of your mind in making this decision. Employers are required by OHSA  to:

Take all reasonable precautions to protect the health and safety of workers; 

Ensure that equipment, materials and protective devices in good working condition are provided to workers; and

Providing information, instruction and supervision to workers to protect the health and safety of workers;

These obligations apply to not only employees, but to independent and dependant contractors, as well.

Essentially, this means that if you decide to keep your business opened, you must ensure that:

Persons with flu-like symptoms are not granted access to the work premises;

The work environment is clean and recommended hygiene practices. such as frequent hand washing and work-area disinfecting, are actively being promoted and implemented;

Physical and social interactions are limited to the extent possible;

Your workers are informed of your coronavirus health and safety policies;

Consider:

Implementing early screening processes to determine whether any persons scheduled to attend at the workplace may have travelled recently, or exhibited symptoms of the coronavirus, or had exposure to someone who is confirmed to have the coronavirus or exhibits such symptoms;

Minimizing work meetings and events;

Allowing workers who can work from home to do so;

Investing in technology to allow more workers to work from home, if possible;

Implementing social distancing practices in the workplace, such as limiting any physical interactions (i.e. hand shakes); scheduling workers at different times; and separating work and lunch spaces;

Providing necessary safety measures such as hand sanitizers and disinfectant wipes; 

Increasing sanitization practices;

Arranging a teleconference meeting to inform workers of the health and safety measures in place, and related policies regarding sick leaves and other absences from the workplace; 

Keep in mind that your workers have the right to refuse to work if they have reason to believe their health and safety may be at risk (subject to certain exceptions based on the type of job). Prepare yourself for this possibility and have a contingency plan in place should this occur.

Among the worst things an employer can do to is compel a worker to continue to work despite their legitimate safety concerns, or to discipline or threaten the worker for exercising their right to refuse to work.

All such steps could be considered unlawful, and could expose the employer to legal risk and potential liability for significant damages and penalties.

2. The option of laying-off employees

If you are wondering how you can possibly afford to continue operating your business with little to no incoming revenue, you’ve likely already turned your mind to the different ways you can curb your business expenses.

With payroll often being one of the largest operational expenses in a business, it may be necessary to consider temporarily layoffs as the coronavirus pandemic peaks.

The decision to lay employees off is a difficult one, and it also carries significant legal risk.  A layoff is not a termination. It is by definition, temporary in nature, premised on the mutual understanding that the employee will return in due time.  Employees who are laid off are typically entitled to EI benefits during their absence, and salary payments are suspended.

As discussed in our previous blog article, if an employee is not recalled to work within the required timelines (initially, 13 weeks)  prescribed by Ontario’s Employment Standards Act, the layoff is deemed to be a termination.

The employee then becomes entitledto statutory termination payments, and in larger organizations after five years' employment, to severance pay, as well as potential damages at common law for wrongful dismissal.

While a temporary layoff might appear to be a tempting tool for employers during these uncertain times, Ontario courts have long held that layoffs are not available at every workplace.

Generally, layoffs are not necessarily permitted unless there is a valid employment contract between the parties that specifically or implicitly authorizes such a layoff.

If you do not have a written contract with your employee providing for the right to layoff, don’t panic just yet.

It may well be that your employee is as keen to be laid off during this time as you are to reduce employee costs, since this presents a number of mutual advantages including that:

Employees will no longer have to attend at work; 

Employees may continue to receive employment benefits if you elect; 

Employees can access unemployment insurance benefits for income support; and 

Perhaps most importantly, employees will have the right to return to work once recalled.

It may be worthwhile to have a discussion with your employees regarding whether they will voluntarily agree to a temporary layoff. 

If there is such an agreement, this should be confirmed in writing. 

It is advisable to consult with an employment lawyer regarding any temporary layoffs that are contemplated and the documentation that may be required should you proceed in this direction.

3. Its time to be creative…

As every successful business owner knows, where there is a problem, there is often a parallel opportunity.

While it is becoming increasingly challenging to continue business as usual, you should consider how your business could adapt during this time. 

Can some of your business be conducted remotely or online? Are there certain ad hoc tasks and projects that your employees can be working on from home? 

Can you use this time to focus on your marketing plan or budget for the year ahead? Perhaps now is as good a time as any to review your workplace policies and protocols.

Whatever it is that you choose to do, it is best for your business to keep calm and make decisions with a clear mind based on all the information available to you.


[1] Occupational Health and Safety Act, RSO 1990, c 0.1 at s. 25 and 26;

- Simran Bakshi, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Gender Issues Relating to Children: California intersex surgery bill fails

BY GARRY WISE AND SIMRAN BAKSHI 
Reprinted from The Lawyer's Daily


In a highly controversial decision last month, a California senate committee voted against proceeding with a bill that would ban cosmetic genital surgery on intersex infants.

The term intersex refers to persons born with genitalia, chromosomes or reproductive organs that do not conform to a single gender. Far from unusual phenomenon, it is estimated that almost two per cent of the population is born with some form of intersex variation.

This bill, which would have been the first of its kind in the United States, proposed to defer surgical procedures on intersex children under the age of six, except for procedures deemed medically necessary by the Medical Board of California.

The bill proposed to permit intersex children the opportunity to be involved in the critical decisions made about their gender identity and health. Its advocates also argue that early “normalization” procedures can lead to incorrect gender assignments and permanent loss of physical sensation.

This is an emerging social policy issue that raises difficult medical, ethical and parental issues. 

The practice of genital surgery on intersex infants has long been criticized by the United Nations and advocates for the intersex community argue that the very notion that anatomically atypical sexual features must, by definition, be “fixed” is problematic at its core

The Canadian Bar Associate’s Sexual Orientation and Gender Identity Community Section (SOGIC) and Health Law Section recently put forward similar recommendations to the Standing Committee on Health in relation to its study of LGBTQI2S health in Canada. The CBA specifically expressed concern regarding the exemption provided for at subsection 268(3) of the Criminal Code as it relates to the rights of intersex children, which allows surgical procedures for the purpose of “normal reproductive functions or normal sexual appearance or function”.

As the CBA submissions explained:

We are not suggesting a complete ban on surgical procedures. We recommend amending the Criminal Code to postpone genital normalizing surgeries on children until the child can meaningfully participate in the decision – except where there is immediate risk to the child’s health and medical treatment cannot be delayed.

Opponents of the California bill claimed it was overly prescriptive in shutting out parents and medical professionals from decisions as to whether surgical intervention is in a child’s best interests. They argued the bill unfairly assumed that parents and doctors opt for surgery without due consideration of the risks and benefits to the child, and that no good would ultimately come from deferral to age six, since parents would then, in any event, be required to make these decisions on behalf of their still-infant children.

Is a child likely to suffer greater harm from early surgical intervention which occurs without the child’s input? Can a child legally provide true consent to an intersex surgery, pre-puberty? Is a child more likely to be adversely affected if surgery occurs before rather than after puberty? Should a parent be entitled to decide about a child’s gender identity without the child’s involvement?

The answer to these questions may well vary from child to child. Is a one-size-fits-all ban on intersex surgeries for all children under the age of six, then really the answer?

While the law must protect a child’s right to develop and to identify with one, both or neither gender; it must also be flexible enough to recognize that there will be circumstances where it may be in the child’s interest for the parent to decide on action earlier rather than later.

Beyond that, society’s “binary” understanding of gender must change.

Decisions regarding intersex surgery must be based on what is genuinely best for the individual child. They should not be based on discrimination, fear or stigma. 

This article was originally published by The Lawyer's Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

140Law: Legal Headlines for the week of March 23, 2020

Here are our leading legal headlines for the week of March 23, 2020 from Wise Law on Twitter: 


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net