All About Estates

When A Custody Battle turns into Competing Guardianship Applications

Written on December 6, 2013 – 8:50 am | by Diane Vieira

In a recent Ontario case, divorced parents each sought sole guardianship of their mentally incapable adult daughter.

The parents, who divorced in the 1980s, were unable to work together as joint guardians of their 42 years old mentally incapable daughter (“Isabella”). While both parents, who are now in their 70s, agreed that it would be ideal for Isabella to reside in a group home for mentally challenged adults, they could not find a placement for her.

Unable to work together, each parent brought an application seeking to be appointed the guardian of person and property for Isabella. Her father sought to be appointed her sole guardian of property and personal care. Isabella’s mother sought to be appointed her sole guardian of personal care and property under the supervision of the Public Guardian and Trustee. The Public Guardian and Trustee sought the termination of their interim appointment and were unwilling to be appointed Isabella’s guardian on a permanent basis.

The court first looked at the relevant provisions in the Substitute Decisions Act and found that Isabella was unable to manage property and unable to make personal care decisions.

Noting that Isabella’s parents had not been able to cooperate with each other for decades and any joint guardianship plan would fail, the court considered which parent would be the better guardian of property and personal care. Isabella spent almost equal time with both parents and the court examined her daily activities with each parent. The court looked at her diet, exercise regime, parents’ encouragement of her independence, and parents’ accessing community services for Isabella’s benefit.

Isabella’s father believed that her life skills had declined significantly due to lack of stimulation and community support for Isabella when she lived with her mother. Evidence from Isabella’s doctors and social workers confirm a decline in Isabella’s development.

While both parents provided a loving home to Isabella, the court found that Isabella’s father was more oriented towards providing stimulus and training to Isabella. For example, Isabella attended school when she lived with her father but had irregular attendance when she resided with her mother. Isabella’s father became her sole guardian of property and personal care.

It is not an ideal situation for parents in their 70s to be the primary caregivers to mentally incapable adults who require a high level of care and stimulation. In this family’s case, Isabella had been on a waiting list since 2008 for a placement in a group home. The court noted that due to inadequate funding, the time wait for community support is 5 to 15 years and there are currently 19,000 people in Ontario waiting for group home accommodation.

Thanks for reading,

Diane

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Tags: Diane Vieira, guardian of personal care, guardian of property, guardianship, Substitute Decisions Act

Posted in Estate Litigation, Guardianship

Last chance to make adjustments…when its gone, its gone!

Written on December 5, 2013 – 7:00 am | by Derek de Gannes

The various laws that the Canada Revenue Agency (CRA) administers allow for the cancellation or waiver of penalties and interest when taxpayers and registrants are unable to meet their tax obligations due to circumstances beyond their control. The CRA may also accept certain late-filed, amended, or revoked income tax elections, and issue income tax refunds or reduce income tax payable beyond the normal three-year period.

Taxpayer relief provisions are limited to a 10-year period. This means that the CRA may grant relief related to any tax year or reporting period that ended within 10 calendar years of the year the taxpayer relief request is made. The CRA may also cancel or waive interest and certain penalties that accrued within 10 calendar years of the year the taxpayer relief request is made, regardless of the tax year or reporting period in which the debt originated.

Taxpayers and registrants (for both GST/HST and non-GST/HST purposes) have until December 31, 2013, to make a taxpayer relief request related to 2003.

The deadline applies to taxpayer relief requests for:
– the 2003 tax year;
- any reporting period that ended during the 2003 calendar year; or
- any interest and certain penalties that accrued during the 2003 calendar year, for any tax year or reporting period.

Act soon for 2003 because when it’s gone, it’s gone.

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Tags: Canada Revenue Agency, cookson walker, Estate Administration, estate trustee

Posted in Estate Administration

To Write a Will, or to Not Write a Will

Written on December 4, 2013 – 8:00 am | by Corina Weigl

Those of us who provide estate planning services are often asked for an explanation of why a prospective client should write a Will. Assuming you are able to persuade the prospective client of the benefits of the exercise, the next question is inevitably – how much will it cost? Over the years I have changed my approach when answering both questions.

Early in my career I would provide all the technical reasons for why it is important to have a Will. Sometimes those reasons would resonate with the prospective client; sometimes they would not. From time to time, whether the given reasons would resonate would be directly proportional to the response to the second question. In fact, sometimes you could almost hear the ‘beans’ being counted as someone was doing a cost/benefit analysis in respect of the question – ‘to write a Will or to not write a Will, what’s it going to cost me’.

Having read a recent blog, it occurs to me that perhaps I have been taking the wrong approach all these years. Perhaps the best approach is the one I use when I try and steer my children down a path I want them to take, as opposed to the one they want to take – use reverse psychology and make them think that I don’t really care what they decide. So for the 50% or more of Canadians who don’t have a Will – and I’m not speaking about a Will where you take a piece of paper and write “All to Mom” on it – you may find Dr. Tom Dean’s recent blog entitled the “Top 10 Reasons You Should Never Write a Will” a more persuasive view in getting you to seek competent advice in the preparation of a Will.