Kira Domratchev, Associate Gowling WLG (Canada) LLP The litigators amongst us are no doubt familiar with the fact that matters of public policy affect the decisions of our Courts. Public policy does not tolerate a wrongdoer profiting from their crime. The “Slayer Rule” or the “Criminal Forfeiture Rule” is where…
Category: Capacity Law
The applicant in Roe v. Roe, 2022 ONSC 5821 (CanLII), was not successful in setting aside his mom’s will on the basis of undue influence and “insane delusions”. He was the only son (of four) who was disinherited in his mom’s will. This was a departure from the mom’s previous…
Pictured: A screen grab from the music video for “Only Acting” by Kero Kero Bonito. It’s one of my favourite songs. It’s not quite about video wills, but it does show off some of the challenges of recording oneself. What are Video Wills? Some practitioners have floated the idea of…
Everyone knows the tragic Shakespeare tale of how Juliet awakens from her “death” to discover that her love Romeo had taken his life, believing that Juliet had really died. Juliet, in her own state of sorrow, stabs herself with a dagger and is joined forever with her love Romeo. This…
In my last blog, I described the Court’s expectation for confirming a finding of incapacity: namely, that compelling evidence is required to override the presumption of capacity. Such evidence may include corroborative information. However, the Court has warned assessors to be alive to the presence of improper motives of informants…
Conflicting opinions about what is in the best interest of an incapable adult is at the core of many guardianship disputes. For example, adult siblings may disagree about the level of care their parent should be receiving or where their parent should live. Although rare, sometimes the conflicting views are…
The question of who will bear the costs of a proceeding at the end of the day is often hotly debated, but the matter may be more complex in cases where the litigation concerns the guardianship of, or issues relating to, an incapable individual. The court in Fiacco v. Lombardi…
It is just as important to know the limitations of a power of attorney for personal care as it is to know your responsibilities.
Power of attorney and guardianship disputes are fairly common in the estate litigation world. Oftentimes, siblings proceed to court as a result of allegations of financial abuse or a failure to look after the health and care of an incapable parent, in accordance with what is required of an attorney…
A few months ago the Ontario Court of Appeal released its decision in Palichuk v. Palichuk, 2023 ONCA 116 (CanLII) (“Palichuk”) which upheld the decision of the applications judge. The applications judge dismissed a guardianship application and awarded costs against the appellant. The appellant sought guardianship of her mom and…