I recently returned to Fasken after taking time off to raise my son.  When I started my leave in September, I was just shy of 16 years working at Fasken without any type of long term break.  To shift gears from going full steam to a much slower pace with a baby was, for me, challenging.  Don’t get me wrong, my time with my son was very rewarding, but I would be lying if I said I didn’t miss the work, the clients and my wonderful colleagues.  In the early stages of my leave, I certainly did have a hard time disconnecting.  It also made me question how other working parents survived the pandemic and working remotely with children at home.

A week before returning to work, I was excited and nervous all at the same time.  Would the “mom brain” that I was warned about kick into high gear, would I need to grease the gears a little or would I just step back in as if I hadn’t left?  I’ve done this for years. It’s like riding a bike, how hard could this be?

As I booted up the new laptop the firm provided to me upon my return (yes, I had to learn new programs), the anxiety of what was awaiting me set in.  I already knew I would be re-inheriting files that I had transferred before my leave, but I also knew I had some new estates awaiting my return.  My way of working before my leave would certainly change now that my home life is different.  Being the workaholic that I was, I have had to accept that my priorities have shifted and as much as I want to be Superwoman, saying yes to everything, that it is ok to say, no, sorry, I am at capacity.

As I came back to work, not only did I have to navigate the new reality of being a working mom with a 1 year old, there were new and exciting changes that would affect my job that I had to familiarize myself with:

• most importantly, changes to the court forms introduced January 1, 2022, with new changes to those forms introduced July 1, 2022; and
• changes to the Planning Act[1], which now does not merge abutting properties on the death of a joint tenant

Court Form Update – July 2022

There were questions surrounding the preparation of the court forms that were introduced on January 1, 2022.  To answer some of those questions and to qualify information being sought, the Ministry of the Attorney General introduced newly amended court forms which came into effect on July 1, 2022.  Some important highlights of the amended versions of the court forms, now clarify and may require additional details such as:

• whether the deceased owned property in Ontario – the new forms clarify this property to be real or personal property
• the relationship of the beneficiary to the deceased is now required
• where multiple applicants are applying, under Form 74A, each applicant’s entitlement to apply must be specified, individually
• there is now a standardized format for setting out the applicant’s name (First Name, Middle Name, Last Name), If named differently in the Will, we must provide an explanation as to why
• if a beneficiary name is different in the Will, an explanation as to the difference is now required
• if a bond is required, a new section outlining what actions are being taken to address the bond has now been included. The applicant must select whether they are:
  • dispensing with or reducing the amount, on consent; or
  • bringing a motion under rule 37 to reduce or dispense with the bond, where consents cannot be obtain (situations where there are minors or incapable beneficiaries)
  • there are two exemptions to the requirement to deal with a bond:
    • if the applicant is the spouse and the estate value is less than $350,000;
    • if the applicant is a Trust company authorized to do business in Ontario
  • if dispensing with or reducing a bond, sample wording has been added to Form 74I – Order in Estates Proceeding
  • there is now an option to specify on Form 74C, the Certificate of Appointment, if the Will was executed remotely
  • it appears that the application for the Small Estate Certificate (Form 74.1A) has been formatted to align with Form 74A- Application for a Certificate of Appointment

Of note, the January 1, 2022 version of the forms will have not be accepted for filing after October 1, 2022.

Abutting Properties no longer merge on death of a joint tenant

January 1, 2022 also saw changes under sections 50(3)(a.1) and 50(5)(a.2) of the Planning Act.  Prior to these changes, there was always a concern when abutting properties were held by (i) family members as joint tenants, as to one parcel of land, and (ii) another parcel of land being held by one of those same family members.  I’ve been involved in files where mother and father own one parcel of land and the other abutting parcel is owned by a child.  When mother and father died, as the child was the only child and the sole beneficiary of the Estate, the issue of the properties merging on the death of the parents would need to be addressed to avoid there being a violation under the Planning Act.  Special planning often was undertaken to incorporate a company for the child to hold a 1% interest in one of the parcels to avoid the merger.

Now, the amendments to sections 50(3)(a.1) and 50(5)(a.2) address this merger of title issue caused on the death of the joint tenant.  An individual may now deal with the parcel of land previously owned by, or abutting land previously owned by a now deceased joint tenant, without the need for fancy, costly planning, to avoid the merger that would have resulted.

Fast paced, exciting, stressful, interesting, challenging, unique are not words that others may use to describe a career in the estates area.  To me, it’s everything I love about estates.  No file is ever the same.  My return and reintegration to the estates world has certainly been all of the above.

[1]      Planning Act, R.S.O. 1990, c. P.13