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End Of Life Decisions – Do Doctors Have The Right To Decide?

November 11, 2011 in Applications for the Opinion and Direction of the Court, Elder Law, Evidence in Estate Litigation, Halacha and Estate Litigation, Public Policy & Estates by Charles Wagner

Mr. Rasouli was in a permanent vegetative state. Fed through a tube inserted into his stomach, he was only being kept alive by a mechanical ventilator.  Believing there was no realistic hope of recovery the doctors wanted to remove his life support. His family said no.  Who has the right to make these decisions? 

The doctors suggested that they do.   The family disagreed.

As Shia Muslims, Mr. Rasouli’s family believed that as long as a person was alive everything should be done to prevent death.  Accordingly, they opposed the doctors’ plan to withdraw the mechanical ventilation. 

This case was first heard by Madam Justice Himel of the Ontario Superior Court of Justice (FN1).  It was appealed to the Ontario Court of Appeal (FN2).  Now leave is being sought to have the matter heard by the Supreme Court of Canada.   Thus far, the courts have sided with Mr. Rasouli’s family.  This case depends on the definition of “treatment” in the Ontario Health Care Consent Act (FN3) (the “Act”) and the steps set out by the Act to resolve disagreements between doctors and substitute decision makers about treatment plans.  Let’s review the law.

The Act provides that medical treatment shall not be administered without the consent of the patient.  If the patient is not capable of giving consent, the treatment must be approved by the person appointed as the patient’s substitute decision-maker.  Sounds simple?  It’s not. 

Key to the Court’s review is the legal meaning of the word “treatment”(FN4).  Also fundamental to the decision making process are the real wishes of the patient.  The substitute decision-maker’s wishes were unimportant – it’s what the patient wanted to do that is key.

The doctors argued that, in this context, “treatment” as defined in the Act does not include the withholding or withdrawal of treatment that had no medical value to the patient. Hence, the withdrawal of such treatment could be done without the patient’s consent. The doctors argued that the Act merely enshrined the common law which recognized a doctor’s right to withhold or withdraw treatment.  The doctors further argued that according to the common law they were not permitted to continue “inhumane” treatment even if the patient or his substitute decision-maker demanded it.  What did they mean by “inhumane”?  In my review of similar cases, and paraphrasing some of the arguments, it seems that in this situation the doctors may feel that continuing unnecessary treatment diminishes the quality of life of the patient and exposes him to gratuitous discomfort and indignity.  It is the extension of death – not life and they argue is inhumane (FN5).

There was some sympathy at the Ontario Court of Appeal for this position.  While they dismissed the doctors’ appeal the Court recognized that their position was serious and warranted careful consideration.

Let’s examine why they sided with the Rasouli family.  There are a number of definitions relating to “treatment” in the Act and both the Superior Court of Justice and the Court of Appeal pointed out that the definition of a “plan of treatment” involved “… the withholding or withdrawal of treatment in light of the person’s current health condition”.  Moreover, given that Mr. Rasouli’s wishes were not known, the Act allowed the doctors to apply to the Health Care Consent and Capacity Board to disregard the substitute decision-maker’s decision to maintain life support. At issue before the Board would be what was in the best interests of the patient. 

The court decisions will likely only delay the argument as to who has the right to decide.  Both the doctors and the Rasouli Family have a right to appeal to the Ontario Superior Court of Justice the decision of the Board on questions of law or fact. On an appeal, the court is authorized to exercise all the powers of the Board, to substitute its opinion for that of a physician, a substitute decision-maker or the Board or to refer the matter back for a rehearing. (FN6)

Why is this case so important to the Jewish community?

End of life issues have halachic implications.  Do we want a stranger whose views on end of life issues may not be in accordance with halacha to be the decision maker?  It is for this reason that both the Rabbinical Counsel of America (RCA) and Agudath Israel have drafted Halachic Living Wills.  I have written extensively on this topic and refer the reader to http://bit.ly/halivwill  This article canvasses the issues, reviews some relevant case and provide links to both the RCA and Agudath Israel precedents (FN7).  I caution the reader that these precedents were drafted for American jurisdictions.  Accordingly, anyone contemplating their use should review the halachic living will precedents with a competent lawyer in your jurisdiction to ensure they would be enforceable here.   

There is another issue relevant to all Canadians regardless of their religious affiliations.  Our health care system is in crisis.  Many say that it is underfunded and mismanaged.  At the initial hearing before Madam Justice Himel the hospital, separate and apart from the doctors, brought up the issue of limited resources.  At the hearing, their lawyer argued that hospitals could be overwhelmed with individuals with no hope of recovery remaining on life support for extended periods of time and thereby deny those who can be helped access to scarce resources.  This issue was not argued at the Court of Appeal, but it is an issue of importance.  Is the lack of funding a driving issue in this debate? 

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1.  Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 CarswellOnt 1650, 2011 ONSC 1500, 105 O.R. (3d) 761, 231 C.R.R. (2d) 26.  An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 (CanLII).

FN 2.  Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre  2011 ONCA 482.  An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482.

FN3.  See online version of the legislation provide by e-laws which can be found at Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A

FN4.  The Ontario Court of Appeal’s decision at paragraphs 19-24  review the relevant provisions with respect to the use of the term “treatment” under the Act.  See sections 1, 2, 10, and 21.  The Court of Appeal’s analysis is set out below.

20]      Of those provisions, the operation of s. 21 of the Act warrants brief explanation. It sets out the principles that a substitute decision-maker must follow in deciding whether to give or refuse consent to a proposed treatment on behalf of an incapable person.

[21]      Under s. 21(1)1., if the substitute decision-maker knows of a wish, applicable to the circumstances, expressed by the incapable person while he or she was capable, after attaining age 16, then the substitute decision-maker must abide by that wish and give or refuse consent in accordance with it. (Ms. Salasel accepts that that provision has no application in her husband’s case).

[22]      Section 21(1)2. applies where the substitute decision-maker is unaware of any such wish (as is the case here) or where compliance with such a wish proves impossible. Under those circumstances, a substitute decision-maker must act “in the incapable person’s best interests” in deciding whether to give or refuse consent to a proposed treatment.

[23]      Section 21(2) of the Act sets out various factors that a substitute decision-maker must take into account in deciding whether the proposed treatment is or is not in the incapable person’s best interests. Broadly speaking, those factors fall under two heads, one relating to the values, beliefs and wishes of the incapable person (s. 21(2)(a) and (b)), the other to the nature and medical value of the treatment proposed in the circumstances (s. 21(2)(c)).

FN5.  Please see Justice Cullity’s decision Scardoni v. Hawryluck, 2004 CanLII 34326 (ON SC) and in particular paragraphs  39 -50 where he reviews the concept of well being under section 21(2) (c) of the Act.  In this court case a decision of the Board was appealed to the court. The Board directed the family to consent to the removal of their mother from a ventilator. The family argued that by virtue of a power of attorney for personal care they were appointed as substitute decisions makers.  While the decision of the Board was overturned on the issue of “Best Interests” and “Quality of Life” Justice Cullity agreed with the Boards position when it stated, “We thought “well-being” involved more than mere life itself. The phrase is subjective as used because it was used in conjunction with the word “condition,” which connoted to us a more objective assessment of the status of a person’s illnesses and physical situation. “Well-being” includes considerations such as the person’s dignity and levels of pain.”

FN6.      Appeals to the Ontario Superior Court of Justice from decisions of the Board on questions of law or fact are permitted by section 80 of the Act. On an appeal, the Court can substitute its opinion for that of the doctor, the substitute decision-maker and or the Board.  Equally important the Court “may receive new or additional evidence as it considers just.”

FN7.     See the website provided by the Orthodox Union of  Orthodox Rabbis entitled “End of Life Issues – Halachic Resources and Forms”.  This is available on line at http://bit.ly/ouresrc and is an invaluable resource.  Please note that any precedent used has to be taken to a competent lawyer in your jurisdiction to determine if the forms provided are applicable to the particular client and specific jurisdiction.  Questions to be addressed include whether  there will compliance with the formalities of execution in the relevant jurisdiction and whether the requirement under the Halachic power of attorneys to consult a rabbi and be bound by his decision constitute a delegation?   If it does then is the Power of Attorney is invalid or is it saved by the concept of  “protector” as outlined in Waters; Law of Trusts in Canada? I have addressed some of these issues in an article “Are Halachic Powers of Attorney for Personal Care Binding in Ontario?” which can be found at http://bit.ly/halivwill

IS DISINHERITENCE BECAUSE OF SEXUAL ORIENTATION LEGAL?

August 19, 2011 in Challenging the Validity of Wills, Claims Against Estate: Summary Procedure, Dependant Support Claims, Equity, Estate Litigation, Public Policy & Estates, Variation of Trusts, Wills by Charles Wagner

Will a Canadian court vary or set aside a will when a parent disinherits a gay/lesbian child because of his/her sexual orientation?  The law may be different depending on the province.

In Canada, the law balances the idea of testamentary independence against public policy concerns.  While cherishing testamentary freedom, the law intervenes when it finds provisions in the will offensive to public policy and or equity.  In Ontario, this restriction on testamentary freedom has been expressed by laws passed to protect spouses (under Part I of the Family Law Act [FN1]) and dependents (under Parts II and V of the Succession Law Reform Act [FN2]). 

Two true stories from British Columbia:  In both Patterson v. Lauritsen [FN3] and Peden v. Peden Estate [FN4], a parent disinherited or reduced the inheritance of a child because the parent did not approve of the child’s homosexuality.  The Court in each of these cases held that, in today’s society, homosexuality is not a factor that would justify a judicious parent disinheriting or limiting benefits to a child. 

Would the same thing happen in Ontario?  Maybe – maybe not.  In the British Columbia cases, even though the parents had capacity and were not subject to undue influence, their wills were open to challenge on the ground that the parents had disinherited their children without, what the court considered to be, reasonable cause. While the Ontario Court of Appeal has stated that the “moral considerations” underpinning the British Columbia approach apply in Ontario, to my knowledge, there has been no case to date where an Ontario Court has varied a will to benefit a non-dependent disinherited adult child [FN5].  In Ontario, except where a will offends public policy, it is still open to debate whether a capable parent, acting voluntarily, is entitled to disinherit a child - however whimsical, mean-spirited, or controlling such action may seem. 

A comment made by an Ontario judge in 1995 is of interest insofar as it suggests where an Ontario court may draw the line.  In Fox v. Fox Estate [FN6], a decision of the Ontario Court of Appeal, the father named his wife the executrix under his will.  The income was to be used for the grandchildren with the capital for the son.  The will also gave the mother an unfettered discretion to encroach on the capital of the estate for the benefit of her son’s children. She took all the capital, eliminating her son’s inheritance because he was involved with a non-Jew.  The judge commented, “….in response to a query from the bench, counsel in this case were not prepared to argue that any court would today uphold a condition in a will which provides that a beneficiary is to be disinherited if he or she marries outside of a particular religious faith”. The Court viewed the mother’s behaviour as being mala fides and contrary to public policy.

Testators that ignore the changing winds of public policy do so at their own peril.  In M v. H, [FN7] the Supreme Court of Canada compelled Ontario to change the definition of “spouse” as set out in the support provisions of the Family Law Act. Prior to that case, common-law heterosexual couples were included in the definition of spouse, but gay and lesbian couples were not. The Supreme Court of Canada ruled that, for the purposes of support under the Family Law Act, a spouse includes “…either of two persons …”. The court ruled that limiting the definition of “spouse” to heterosexual couples, for the purposes of support, was discriminatory and not justifiable.  In Canada today same-sex marriages are legal.  It is therefore entirely possible that an Ontario court would set aside a provision in a will that disinherited someone because of his/her sexual orientation, on the grounds that such disinheritance offended public policy.

 This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.   The author gratefully acknowledges the assistance of Michelle Kotzer in the preparation of this article.

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FN1.  Family Law Act, R.S.O. 1990, c. F.3

FN 2.  Succession Law Reform Act, R.S.O. 1990, c. S.26

FN3.   Patterson v Lauritsen (1984) CarswellBC 381, 58 BCLOR 182, [1984] 6 WWR 329, 17 ETR 316.  Available on line at Patterson v. Lauritsen, 1984 CanLII 353 (BC SC)

FN4.   Peden v Peden Estate (2006) CarswellBC 2801, 2006 BCSC 1713, [2007] WDFL 1837.  Available on line at Peden v. Peden, Smith et al., 2006 BCSC 1713 (CanLII)

FN5.   See Justice Cullity’s 1998 decision of  Banton v. Banton, 1998 CanLII 14926 (ON SC) and in particular paragraph  36  where he states, “It is hardly necessary to say that the principle of freedom of testamentary disposition is in the background to the issues relating to the validity of the wills of December 21, 1994 and May 4, 1995. If George Banton had capacity and was not subject to undue influence at the time of the execution of one of those wills, its validity and effect are not open to challenge on the ground that he thereby disinherited his children. In this jurisdiction, unlike others in Canada and elsewhere, unless the children are dependants, a capable parent acting voluntarily, is entitled to do this however mean and ungrateful it may seem, or how selfish the motive; hence the focus in this case, as in so many others, on testamentary capacity and undue influence.”

Compare this with the decision of the Court of appeal in Cummings v. Cummings CanLII 9339 (ON CA).  At paragraph 40,  Blair J. A. states, “[40]         In my view these questions have been resolved by the decision of   the Supreme Court of  Canada in Tataryn v. Tataryn Estate 1994 CanLII 51 (S.C.C.), [1994] 2 S.C.R. 807.  There, the Court  held that a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make.  In doing so, it rejected the argument that the “judicious father and husband” test should be replaced with a needs-based analysis: see para. 23.  I see no reason why the principles of  Tataryn should not apply equally in Ontario, even though they were enunciated in the context of   the British Columbia Wills Variation Act R.S.B.C. 1979, c. 435, in which the language is somewhat different from that of  the Succession Law Reform Act.

I also recommend  the reader to see  Susan J. Woodley’s paper entitled “The (Almost, Possible, Probable) Right of an Adult Child to Receive Support”, presented at the Ontario Bar Association 2009 Institute of Continuing Legal Education.

FN6.    Fox v. Fox Estate 1996 CanLII 779 (ON C.A.), (1996), 28 O.R. (3d) 496, 10 E.T.R. (2d) 229 (C.A.),

FN7. M. v. H. [1999] 2 S.C.R. 3. I refer the reader to an aritlce written by Mary C. Hurly entitled “Sexual Orientation and Legal Rights”. The article appears on the Parliament of Canada Website and can be found at Sexual Orientation and Legal Rights (PRB 08-49E) . When considering the impact of the decision and how it reflects on public policy in Canada her conclusion speaks to how a court may view the public policy issue. “Judicial and legislative reforms, particularly since the M. v. H. decision in 1999, have effected a significant shift in Canadian society with respect to recognition of the legal status and claims of same-sex conjugal couples. The watershed nature of this shift is illustrated, most notably, by federal legislation sanctioning same-sex marriage.

Opponents of these reforms continue to argue that the extension of same-sex rights in general, and same-sex marriage in particular, undermine the traditional family and family values. At the same time, some gay and lesbian couples (like some heterosexual couples) do not want either the legal obligations or the benefits that flow from spousal status or marriage. As the 2002 report of the former Law Commission of Canada and other indicators suggest, the question of whether the matter of entitlements based on the marital or conjugal nature of a partnership should be re-examined remains open.”

A Trustee Is Not Entitled To Use Trust Property For His Own Benefit

March 29, 2011 in Applications for the Opinion and Direction of the Court, Costs, Costs in Estate Litigation, Evidence in Estate Litigation, Executors / Trustees, Passing of Accounts and Executor's Fees, Public Policy & Estates, Retirement and Removal of Trustees, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates, Variation of Trusts by Charles Wagner

 Justice Strathy of the Superior Court of Justice ordered that Mr. Zimmerman repay nearly $500,000 in compensation he took as an attorney for property (FN1).  The judge also ordered that he personally pay the legal costs of the other side amounting to $284,362.19 (FN2).    What happened?

 Let me first introduce you to Robert and Signe McMichael.  During their lives they collected Canadian art from artists like Tom Thomson and the Group of Seven members. In 1964 they donated their art collection to the province of Ontario and by 1981 the Collection had grown to include more than 2,000 artworks. This Collection is truly a Canadian national treasure. (FN3).

In 2001 Robert and Signe McMichael made mirror wills (FN4).  Both husband and wife left everything to each other.  Signe’s Will, (like her husband’s) said that if her spouse predeceased her, then when she died, Signe’s assets would be donated to the Collection.   Mr. McMichael died in 2003 and his assets were inherited by his wife. 

 After her husband’s death, Mrs. McMichael signed a power of attorney appointing Mr. Zimmerman as her sole attorney for property.   In early 2004 Mr. Zimmerman’s lawyers prepared a trust document appointing Mr. Zimmerman as the trustee.  Mr. Zimmerman then transferred virtually all of Mrs. McMichael’s assets including the art collection into the trust so that there was virtually nothing left in her estate. 

 Under this new trust, Mr. Zimmerman had sole and unfettered discretion to decide which art related organization would receive Signe’s assets years after her death.  Effectively, the new trust rendered the Will meaningless. Instead of inheriting everything immediately after Signe’s death, the Collection would get nothing.  If the new trust went unchallenged it was totally up to Mr. Zimmerman to decide whether the Collection would receive any of Signe’s assets.

 When Mrs. McMichael died in 2007 her niece and husband, the executors under the Will, commenced a legal proceeding.  They asked the court to declare that the Power of Attorney and the Trust were void on the ground that Signe lacked capacity.   They also wanted Mr. Zimmerman to pass his accounts in a separate proceeding. 

 The only issue before Justice Strathy was Mr. Zimmerman’s passing of accounts.  To pass his accounts Mr. Zimmerman had to show what assets of Signe’s he received and how the money under his control was spent.  As an attorney for property it was Mr. Zimmerman’s statutory and common law duty to keep proper accounting records and proof/vouchers to demonstrate that the money spent was for the benefit of Mrs. McMichael.  This duty is imposed on trustees because it is a basic fundamental principle of trust law that Mr. Zimmerman, as a trustee, was not entitled to use the trust property for his own personal benefit.  If Mr. Zimmerman did use Signe’s assets for his own personal benefit or if he could not account or explain to the court how he spent the money then he would be liable to return it.

 When Mr. Zimmerman tried to pass his accounts the fireworks started.

 Whatever accounting that was provided was incomplete.  Mr. Zimmerman could not or would not provide proper explanations about how he spent the money.  The court found that Mr. Zimmerman breached his fiduciary duties and failed to exercise his powers and duties diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.  Mr. Zimmerman did not comply with his obligation to keep proper accounts and was not in a position to prove that he administered the trust prudently and honestly. He did not have the accounts ready and was not able to give full information when required. 

 Mr. Zimmerman infuriated the court because he failed to respond to appropriate objections to his accounts.   The judge drew an adverse inference that by failing to respond properly to the questions raised by the Collection and the estate trustees Mr. Zimmerman was guilty of taking the money for himself and would be required to reimburse the estate for those disbursements and expenses (FN5).

 This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

 Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1.  Please see Zimmerman v. McMichael Estate  2010 CarswellOnt 3481, 2010 ONSC 2947, 57 E.T.R. (3d) 101, 103 O.R. (3d) 25 and in particular paragraphs  29 and 88 and 90 for the proposition that a fiduciary may not profit from his role, paragraph 30 for the fiduciary’s duty to account, and paragraphs 35,43 45, 49 and 89. 

 

FN2.  Please see the second Zimmerman decision.  The first was decided on May 20, 2010 and cited in FN1.  The second was decided on October 4, 2010  and can be found as Zimmerman v. Fenwick 2010 CarswellOnt 8372, 2010 ONSC 5452.

FN3.  Robert and Signe McMichael  founded  the Collection,. Some of the history of the Collection, is described in the judgment of the Court of Appeal in McMichael v. Ontario (1997), 36 O.R. (3d) 163, [1997] O.J. No. 4661 (Ont. C.A.), leave to appeal refused, (S.C.C.)..  Their website can be found at http://www.mcmichael.com/

FN4.  It is important not to confuse the terms “Mirror Wills” and Mutual Wills.   Mirror Wills are identical to one another.  Mutual Wills creates an agreement which equity enforces that the wills will not be changed.   I refer you to the explanation of Histrop, Estate Planning Precedents which excerpts from Canadian Forms of Wills, 4th ed. BY Terence Sheard and the late Rodney Hall,  “  Although a will is by its nature revocable, a testator may, by agreement, create equities in his assets that will be enforceable against those who derive title from him (Dufour v. Pereira (1769), 1 Dick. 419; Stone v. Hoskins, [1905] P. 194; 39 Hals., 3rd ed., p. 851; see also Re Hagger, [1930] 2 Ch. 190). The commonest manner in which such equities are created is through the making of joint or mutual wills  but the mere fact that two wills are made in identical terms does not of necessity imply any agreement to constitute equitable interests so as to, in effect, make the will of the survivor irrevocable” .

FN5.  The finding of an adverse interest is very important with respect to accounting.  Under the common law section 32(6) and 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30  and under the regulations Accounts and Records of Attorneys and Guardians, O. Reg. 100/96 the attorney for property has a absolute strict duty to in accordance with the regulations, keep accounts of all transactions involving the property of the grantor of the Power of attorney.  Justice Strathy, in his judgment, addresses what happens when the attorney fails to keep proper records: 

Duty to Account:  trustee has an obligation to keep proper accounts. A trustee must keep a complete record of his/her activities and be in a position at all times to prove that he/she administered the trust prudently and honestly. He/she must have the accounts ready and give full information whenever required. (see para 30)

Adverse Inference:  An attorney who fails to retain receipts supporting substantial cash withdrawals or expenses charged against the incapable person’s property has not adequately carried out his/her duties and will be held personally liable for the unsubstantiated withdrawals (para 35)  It is a basic principle of trust law that a trustee is not entitled to use the trust property for his or her own personal benefit.  Trustee has onus to prove disbursements were legitimate.   If a trustee cannot account for or explain disbursements or expenses charged against a trust he/she is personally liable to the trust for those disbursements (paragraphs 43 45, 49 and 89).

Where There is Life There is Hope

February 26, 2011 in Applications for the Opinion and Direction of the Court, Court Appointed Guardians of Property and of Person, Public Policy & Estates by Charles Wagner

When should hospitals take away a person’s right to make end of life decisions? 

This topic is once again in the news as Moe Maraachli and Sana Nader are at odds with the London Health Sciences Centre.  The parents want their terminally ill child discharged from the hospital to die at home.  The hospital refused.   The parents lost at the Health Care Consent Board and lost their appeal in court (FN1).  Without commenting on this very sad case it once again raises the issue of who has the right to make life ending decisions for people who are not capable of making those decisions themselves.  Should it be the parents of a child or the hospital?  If an adult has signed a power of attorney for personal care should the attorney for personal care or the doctor decide? 

A case in Ontario which dealt with this dilemma was Scardoni v. Hawryluck (FN2).  Here a power of attorney authorized two daughters to make decisions concerning their mother’s personal care and to give or refuse to consent to treatment. Their mother always told them “where there is life there is hope”.   So even though the doctor said there was no chance for their mother to recover, and in spite of their mother’s pain, the daughters insisted that all efforts be expended to prolong their mother’s life.  The doctor disagreed because while the ventilator and drugs would sustain the mother’s life, the mother’s disease was incurable and in the doctor’s opinion the resulting pain, discomfort and loss of dignity resulted in a lower unacceptable quality of life.

Before analyzing the judge’s decision let’s review the law.  The governing legislation in Ontario is the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A .   Under section 10 (FN3) a doctor may not administer treatment unless he has the consent of the patient.  It is arguable whether he needs the patient’s consent to withdraw treatment.  Where the patient is incapable of giving his consent, pursuant to section 10, the doctor needs the permission for the recommended treatment from the Substitute Decision Maker who was designated under the power of attorney for personal care or alternatively by statute.  If the Substitute Decision Makers will not consent to the doctor’s proposal the doctor can apply to the Health Care Consent Capacity Board who has the authority to order the Substitute Decision Maker to consent.(FN4)  Either party may appeal the decision of the board to a judge of Ontario’s Superior Court of Justice (FN5).   That is what happened in Scardoni v. Hawryluck.  The Capacity Board directed the daughters to follow the advice of the doctor.  The daughters refused to go along with the doctor who wanted to take their mother off the ventilator and instead appealed the Board’s decision to the Ontario Superior Court of Justice.

The Scardoni v. Hawryluck case was decided by Justice Cullity.  He had to decide whether the Power of Attorney was specific enough to indicate the mother’s wishes, and if not, was there any evidence to establish what the mother would have wanted done in this situation.  The hospital’s lawyer argued that the power of attorney was too vague because the mother could not have known about how painful and hopeless her situation would be.  Given that their mother’s instructions were unclear, the doctor argued that the legislation directed the daughters to make their decision based on what was in the best interests of their mother.  The doctor argued that it was in the patient’s best interest to withdraw treatment because the mother no longer had any quality of life.  While Justice Cullity agreed that quality of life was a factor in determining the best interests of the patient, he still granted the daughters’ appeal and stopped the hospital from withdrawing the life saving treatment.(FN6)  In his view, the power of attorney was specific enough and the mother made her treatment wishes known to her children.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1.   For newspaper reports on this story I refer you to http://www.nationalpost.com/related/topics/index.html?subject=Capacity+Board+of+Ontario&type=Organization

 FN2.   Scardoni v. Hawryluck 2004 CarswellOnt 424, 5 E.T.R. (3d) 226, 12 Admin. L.R. (4th) 67, 69 O.R. (3d) 700

 FN3.  Section 10 provides that treatment shall not be administered unless the doctor is “of the opinion that the person is capable with respect to the treatment, and the person has given consent; or he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act

 FN4.  The principles for making decision by a Substitute Decision maker is set out in section 59 of the Act.   A person who makes a decision on an incapable recipient’s behalf concerning a personal assistance service shall do so in accordance with the following principles:  1. If the person knows of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, the person shall make the decision in accordance with the wish.  2.  If the person does not know of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the recipient’s best interests.   Under section 69(3) in determining whether the substitute decision-maker complied with section 59, the Board may substitute its opinion for that of the substitute decision-maker

 FN5.  See section 80.  (1) which states that a party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

 FN6.  Section 10 provides

 A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 

 In Scardoni v. Hawryluck there is a very interesting part of this judgment at paragraphs 39 – 41.   Justice Cullity  said as follows: 

The first question is whether s. 10(1)(b) imposes an obligation on a health practitioner to obtain the consent of the substitute decision-maker to a decision to withdraw, or withhold, particular treatment. Notwithstanding the inclusion of such proposals in the definition of a “plan of treatment” and the inclusion of such plans in the definition of “treatment,” Mr. Underwood suggested that the correct interpretation of s. 10 might well be that implementation of a proposal to withdraw, or withhold, treatment is not to be considered an administration of treatment within the meaning of s. 10. While a proposal of a plan of treatment that includes a withdrawal, or withholding, of one or more particular treatments would be a proposal of treatment within the opening words of s. 10, the obligation “not to administer treatment” would, on this interpretation, apply only to positive steps to be taken to treat the patient’s condition. On this line of reasoning it would follow that a substitute decision-maker’s consent – or, presumably, that of a capable person – to a withholding of treatment is not required by s. 10(1) and, to that extent, in Mr. Underwood’s submission, the Act does not alter the common law.. 

 In other words, arguably, doctors do not need permission to withdraw or withhold treatment.

DNA Testing and Estate Litigation

February 11, 2011 in Applications for the Opinion and Direction of the Court, Claims Against Estate: Summary Procedure, Court Proceedings to Ascertain Heirs of an Estate, Estate Litigation, Evidence in Estate Litigation, Executors / Trustees, Probate, Public Policy & Estates, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates, Wills by Charles Wagner

“She is not my daughter.”

The court heard evidence that the late Kerry Kelly did not believe Shauna was his daughter. (FN1)    Kerry believed that Shauna’s mother “… cheated on me with no sex protection”.  The judge believed Pamela Proulx, Kerry’s sister, who said that Kerry never recognized Shauna to be his biological daughter.  Aunt Pamela applied to court to obtain a DNA test of Shauna and compare it to a sample of Kerry’s DNA to see whether Shauna was Kerry’s biological daughter.  Shauna opposed the application.  Let us review some of the reasons why the DNA test was worth fighting about and the legal arguments used by each side.

Kerry died intestate which means that he passed away without a legal will.  According to the law of Ontario (FN2) where an unmarried person dies intestate his children receive the estate. (FN3)   For all purposes, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children (FN4).  Since Kerry did not have a will Shauna’s entitlement to an inheritance turned on her being the biological child of Kerry.  So now we understand why Aunt Pamela wanted Shauna to take a DNA test and why Shauna resisted taking one.  If the DNA test proved that Shauna was not Kerry’s real daughter then she does not get an inheritance from Kerry’s estate.  On what grounds could Shauna argue that she did not have to take the DNA test?

Shauna argued that that under s. 8 of the Children’s Law Reform Act Kerry was presumed to be the father of Shauna because he was married to Shauna’s mother at the time of Shauna’s birth and he was also listed as Shauna’s father on the Statement of Live Birth.  Shauna argued that it was up to her aunt to rebut that presumption of paternity and, until she did, no DNA test should be ordered.

Aunt Pamela relied on section 10 of the Childrens Law Reform Act which provides that in a court case in which a child’s parentage is at issue the court may order that DNA tests take place and if that person refuses to submit to a DNA test the court may draw such inferences as is appropriate.  There is no mention in section 10 that Aunt Pamela had to rebut the presumption of parentage.  Now that you have heard both sides – what do you think Justice Coats ordered?

Justice Coats ordered that the DNA test take place.  In his view DNA testing was objective, impartial and scientific evidence and it was in the interests of justice for the court to consider the best evidence.   He preferred DNA testing to the contradictory and less certain evidence offered by the parties and other family or community members.  Does that mean that judges will always order DNA testing?  Not necessarily.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

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FN1.  This name of this case is Proulx v. Kelly, 2010 ONSC 5817 and can be found on line at http://www.canadalawbook.ca/summaries/pdf/10334117.pdf

FN2.  See Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 and “Law of Intestacy in Ontario” found at http://www.wagnersidlofsky.com/articles/intestacy-in-ontario.php

FN3.  This is not a simple matter. For example, see section 47(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 which deals with the situation where a child dies before his parent.  For example, if father had 3 children A, B and C.  Assume A had 2 children of his own.  A died before father.  If father died without a will then his estate would be divided in three equal shares.  1/3 to B, 1/3 to C and 1/3 to A’s children.  With respect to Ontario Intestacy law even if A died before his father the intestate inheritance law acts still gives A his share of the estate just as if A did not predecease his father.  The late A’s portion of his father’s estate goes to A’s children.

FN4.  See section 1 of the Children’s Law Reform Act

Rectification – the Equitable Remedy to Fix Errors in a Will

November 12, 2010 in Applications for the Opinion and Direction of the Court, Challenging the Validity of Wills, Estate Litigation, Executors / Trustees, Public Policy & Estates, Solicitors’ Negligence in Estate Matters, Wills by Charles Wagner

Sometimes even professionals just drop the ball. Imagine walking into your lawyer’s and asking him to make a few changes to your will. Instead of typing in a bequest of $2,500.00 the lawyer types $25,000.00. The Will is signed and no one notices the mistake until after the testator dies. That is what happened in Nugent v. Lang (http://bit.ly/dhN38j ). The lawyer admitted the error was his and he testified that the testator wanted the bequest to be $2,500. It should be simple right? Not so fast.

The Plaintiff asked the court to fix the mistake. The legal term for this request is “Rectification”. Courts use this equitable remedy very carefully. Exactly what type of evidence a judge may consider is being debated in the courts. How sure does the court have to be to fix the mistake? Is the court limited in how it can fix the mistake? In exercising the remedy is the court limited to only being able to delete certain parts of the will? Can a judge add missing words? In this case the court rectified the draftsman’s error and changed the bequest from $25,000 to $2,500.
Cases like Lipson v Lipson,( http://bit.ly/lipson ), Binkley Estate v. Lang, (2009) 50 E.T.R. (3d) 44 and Balaz v Balaz,( http://bit.ly/cq9BJi] ) all involve situations where the courts fixed some form of lawyer mistake. Either there was an accidental slip or omission because of a typographical or clerical error, the testator’s instructions had been misunderstood, or the testator’s instructions had not been carried out. Despite these recent cases where judges fixed mistakes made in the will it is very important to remember that not every error will be rectified by the courts.
In Re Estate of Blanca Esther Robinson (http://bit.ly/9x5g0B ) the court refused to fix the mistake. In that case the testator signed a Will dealing with her European property. She also signed a Canadian Will dealing with her Canadian property. Years later, she made a new Canadian Will but did not tell her new lawyer about the Spanish will. Since the lawyer had no knowledge about the Spanish Will the solicitor included the standard provision revoking all previous wills. The beneficiaries asked the court to fix the mistake. The court refused. The judge stated, “….if no errors were made by the solicitor and the words in the will were reviewed and approved by the testator, rectification will not be available simply because the testator was mistaken about their legal effect.” So it seems that not every mistake will be rectified.
This short review of the case law on rectification should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is the managing partner at Charles B. Wagner and Associates. This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

Do Mistresses Have a Right to Inheritance?

October 21, 2010 in Applications for the Opinion and Direction of the Court, Claims Against Estate: Summary Procedure, Claims by Common Law Spouse, Dependant Support Claims, Estate Litigation, Public Policy & Estates, Uncategorized, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates by Charles Wagner

Can you imagine burying a spouse and then being sued for support by his mistress? For those who believe in primacy on marriage and that marriage obligates its partners to fidelity, the idea of rewarding a mistress to a portion of the family’s an inheritance is unjust. Others argue that financial obligations should flow from the intensity and duration of life partner relationships regardless of the partners’ marital status. What do the courts think?

In Nowell v. Town Estate (http://bit.ly/nowell ) the deceased had a 24 year extramarital affair. During the week he lived with his wife, but on the weekends this man spent time with his mistress, gave her gifts worth about $125,000 and promised to support her. The mistress contributed to the man’s work as an artist without compensation. Left nothing in the will she sued the estate. Do you think she deserved any money? The Ontario Court of Appeal did.

The judges recognized that a 24 year relationship was more than casual and for the last 13 years it was quasi-spousal. The judges felt the mistress should be fully compensated because the estate was unjustly enriched. Mr. Town accepted his mistress’ help, did not pay for it, and he benefited financially. The court was influenced by the fact that the mistress made Mr. Town the focal point of her life and that through the years Mr. Town assured his mistress that he would look after her. While this did not create a legal relationship it proved the nature of the relationship. The court still awarded her $300,000.

In Mahoney v. King 1998 CarswellOnt 2348 a mistress successfully sued a married man for support because the court found that she was a common law spouse. Arguably, a mistress suing her paramour’s estate could use this case as a precedent. As a “spouse” the mistress would qualify as a dependant and would be entitled to support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 if her paramour did not provide her with adequate support. There are those like the late law professor James G. McLeod who disagreed with this decision. He took exception to the idea that a woman who had an affair with a married man who lived with his wife may be a “spouse”. While Professor McLeod understood the argument of making an unjustly enriched estate compensate a mistress like in Nowell v. Town Estate he felt that to suggest that a mistress was a spouse for support purposes takes away whatever meaning is in the word “spouse”. 

The different views of a mistress entitlement to support under the law should tell you that this issue is not a simple one. My short review of these cases should not be taken as legal advice. Based on my experience in dealing with these cases they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

DISINHERITING CHILDREN WHO MARRY OUTSIDE THE FAITH

October 3, 2010 in Applications for the Opinion and Direction of the Court, Capacity, Challenging the Validity of Wills, Estate Litigation, Executors / Trustees, Halacha and Estate Litigation, Public Policy & Estates, Wills by Charles Wagner

While I have previously addressed the legality of disinheriting intermarried children in both in the Tribune (http://bit.ly/9ADVJY ) and in the Ontario Lawyer’s Weekly (http://bit.ly/bv9Rjm) a recent case suggests another review is warranted.    In Re Estate of Max Feinberg (http://bit.ly/cb5CKo ) three Illinois courts reviewed what they called the Jewish Clause which stated: “A descendant of mine other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendents shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.”

The court weighed testamentary freedom against the common law’s disdain for wills that restrain people from entering into an otherwise legal marriage.  The Illinois’ court of first instance and appellate court ruled that the Jewish Clause was invalid because it seriously interfered with the right of individuals to marry a person of their own choosing.  It was now up to the Supreme Court of Illinois. 

The Illinois Supreme Court held that the Jewish Clause was valid.  The test was whether the provision was capable of producing harm that its enforcement would be contrary to the public interest. The Illinois Supreme Court upheld the Jewish Clause because they placed a premium on the right of individuals to decide what happens to their assets after they die. They disagreed with the lower courts who suggested that the clause in question was a restraint of marriage.  

What is the position of other jurisdictions?  As Illinois’ Justice Greman, pointed out, “… In most states they allow this – not just with Jews but for Catholics and others.” So what about Ontario?  The Ontario Court of Appeal, in a non-binding aside (obiter), addressed this issue in the Fox Estate case (http://bit.ly/98b5gw).  Fox’s will gave the executor absolute discretion to use trust money for his grandchildren.  The executor removed all the money to disinherit her son because he married a non Jew.  At issue was whether the executor’s conduct was proper.  The judge commented, “….in response to a query from the bench, counsel in this case were not prepared to argue that any court would today uphold a condition in a will which provides that a beneficiary is to be disinherited if he or she marries outside of a particular religious faith”.

Given the treatment of this issue in the US, does that mean a Jewish Clause would be void in Ontario? Maybe – Maybe not. The fact that three Illinois courts came to different conclusions should tell you that this issue is complicated and this review should not be taken as legal advice. I receive calls about this and other similar issues all the time. Cases often turn on the specific facts.  If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.