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5 Reasons Why You Need a Will

People often avoid contemplating their own mortality and neglect to plan for the distribution of their assets when they die. Many put off to tomorrow planning that should be done today. Unfortunately, everyone will eventually pass away and often with considerable assets. In light of how our daily lives have changed as a result of COVID-19, we are receiving numerous requests from clients to review or draft comprehensive estate plans. This blog will discuss the top 5 reasons why you should consider having a Will prepared or updated. 

 

Dying without a Will can be a costly process and cause unnecessary stress on your children and family. 

 

  1. If you die without a Will and leave children (which we call "issue" in the law), your spouse may be left with having to share the estate with the children. In Ontario, a spouse is entitled to up to $200,000 of the estate. The remainder of the estate is split between the spouse and the children. Most of the time, this would not have been the intention of the testator had they written a Will before they died.
  2. You can name a person (or persons) as a Guardian for your minor children in your Will. If you die without a Will, the remaining family members may be left to decide who you would have wished to take on this responsibility without being able to consult with you for guidance. Most of the time, the testator would have wanted to make sure that adequate arrangements were made in advance for minor children.
  3. If you are not married but you are living with a common-law partner and die without a Will, these circumstances can leave your common-law partner with no property rights. Remember, the law is different for married spouses and common-law partners under the Family Law Act. In these circumstances, a Will is critical to ensure that your wishes and intentions are made clear. 
  4. If you die without a Will, a government individual may be appointed as your personal representative to handle your estate.  Alternatively, a family member would have to apply for a Certificate of Appointment of an Estate Trustee Without a Will, which is often more costly then the fees required to have a Will drafted. 
  5. In many circumstances, you may benefit from tax planning and advanced estate planning services to minimize the probate tax that will be due for your assets upon your death. Dying without a Will may result in your estate having to pay taxes in excess of what you would have owed had you died with a full and comprehensive estate plan including a Will. 

It can often cost more to administer an estate where there was no Will than an estate with a Will and proper estate plan. Therefore, estate planning is an important aspect of organizing your personal affairs that should not be ignored. Our team of highly skilled Kitchener estate planning lawyers recognizes that estate planning can be a very personal matter that requires unique personal attention to ensure that we implement a comprehensive estate plan that respects all of your wishes, while minimizing the potential for family disputes.

 

We offer comprehensive estate planning designed to meet your wishes and goals while protecting your legacy and reducing your estate's probate tax.

 

Estate planning is the process of arranging your affairs to ensure that at your death your savings and assets will pass on to your beneficiaries in accordance with your wishes and without unnecessary tax consequences. This process can involve the drafting of Wills, Trusts, Powers of Attorney, and general estate management. Whether you are just starting out in your career and require a basic Will and Powers of Attorney or you have considerable assets and require a more detailed estate plan, our Kitchener estate planning lawyers are ready to assist you in meeting your goals and protecting your legacy. We offer reasonable flat rate packages for many of our estate planning services and discounted rates for spouses who wish to create similar estate plans.

 

If you believe that you could benefit from assistance in Estate Planning, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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Many parents have recently found themselves in disagreement over whether or not in-person learning at school is safe for their children with the rise of COVID-19 cases across much of the country. Parents may find themselves in disagreement, and naturally there is often divided opinion between parents, especially for those who are separated and divorced and do not see to eye-to-eye on issues of parenting.

 

In a recent case of Zinati v. Spence 2020 ONSC 5231, the Ontario Superior Court of Justice considered at motion the issue of whether it is safe for a child to attend school in-person.

 

Parents disagree over whether or not school is safe for a child

 

The mother and father of the child, who was 6 years old and was to start Grade 1 this year, exercised de facto joint decision making. Like many children, the child's last year of school was interrupted by the COVID-19 shutdown. The child's school resumed in-person learning in September 2020. However, the father did not wish the child to attend in-person schooling, while the mother supported that the child return to in-person learning.

 

The issue before the court was to determine if it was in the child's best interest to return to in-person learning at her school, or to continue with online learning. 

 

To make matters even more complicated, the child's stepmother is a front-line health care worker who therefore may be of exposed risk of getting COVID-19. Both homes were also shared by a grandparent. However, the court did not consider the grandparents to be at increased risk other than risks associated with age. The court was satisfied that the stepmother was following health guidelines established by her profession. The child had no health issues of her own that would put her at an increased risk if she were to contract the virus.

 

How has the court been dealing with cases involving children and return to school during the concerns relating to COVID-19?

 

There have been a number of decisions recently released relating to the question of safety for students returning to school during COVID-19.  In Chase v. Chase 2020 ONSC 5083, Justice Himel of the court heard an urgent motion in writing where the parents could not agree about whether or not their child should attend school in-person or online. In Chase v. Chase, the court referenced two cases from Quebec, which is unusual because Quebec decisions are rarely binding on Ontario courts. In one of the Quebec cases, a return to school order did not occur because a family member was at high risk of contracting the virus because of an autoimmune disorder. In the other case, the court found that the government and provincial health authorities were in the best position to determine if a return to school decision was safe.

 

In our case at hand, the court examined a child-focused approach to the school attendance issue and quoted the earlier Ontario decision in Chase v. Chase, which stated at paragraph 42:

 

"The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns. While the parties spent considerable time addressing a recently released report by the Toronto Hospital for Sick Children, I decline to consider same. There are experts on all sides of the Covid-19 debate, however, the decision to re-open schools and the steps being taken to protect children and staff fall within the purview of the Ontario government."

 

The Court's View

 

Justice Akbarali held that while no child is entirely free of the health risks associated with COVID-19 while attending school, the risks have not found be severe enough to warrant keeping children who are not at a higher risk of health complications from attending at in-person learning. The court found that there were not sufficient grounds to warrant requiring the child to attend school virtually or to delay the child's return to in-person learning. 

 

The court also held that there would be no order as to costs because the issue "novel, important, and an all-or-nothing issue." The court found that since neither party acted in bad faith or took unreasonable positions that there was to be no costs of the motion.

 

If you are dealing with a complication arising from a situation of schooling for a child during COVID-19 as it applies to your family law and parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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Court holds that an Urgent and Emergency Motion in Family Court must always include an Affidavit in support

 

The Unified Family Court in Kitchener of the Ontario Superior Court of Justice recently held that an emergency and urgent motion during COVID-19 required an affidavit in support of the motion, service on the Applicant father, and grounds identifying why the matter before the court was of urgency.

 

Madam Justice L. Madsen held in Bruni v. Daunheimer-Bruni, 2020 ONSC 2017 that an urgent and emergency ex parte motion in writing could not be heard because counsel for the Respondent mother failed to file any affidavit in support of the motion setting out how any of the issues raised in the motion could be considered to be urgent. The Respondent mother was the moving party of the motion and was seeking, inter alia, permission to travel with the children without the consent of the Applicant father during COVID-19 emergency orders. The court held that there was no grounds of urgency since there was no affidavit in support of the motion, a federal travel advisory recommending against all international travel, and all Ontarians were being urged to stay at home and not to travel. If the Respondent mother wished to pursue her Motion to Change, she was required to have her documents issued and served accordingly in accordance with the Family Law Rules. The court stated that the matter would then be held in its ordinary course, which would require service on the Applicant father.

 

Our Take Away

 

What we learn from this case is that it is always important to retain experienced family law counsel to ensure that you have all of the required evidence before the court. All motions including those of an urgent and emergency nature require an affidavit in support of the motion containing all of your grounds for the motion and evidence by way of exhibits. If you fail to provide this information to the court, your motion will not be successful and will be adjourned or dismissed.

 

If you are dealing with a complication arising from a situation of mobility and COVID-19 as it applies to your family law and parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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In Grossman v. Kline, 2020 ONSC 2714,  Madam Justice J. Akbarali of the Toronto Superior Court of Justice released a recent decision from a family law emergency urgent motion concerning shared parenting and one parent's desire to self-isolate with their child at the cottage to the objection of the other parent during COVID-19. The parents in this case cohabitated for 2.5 years. They separated in May 2017. Following the separation, in October 2017, the parents reached a partial Separation Agreement that included an equal time-shared parenting plan for the child. The mother is a family physician who was diagnosed with cancer and is at high risk of contracting COVID-19 due to being immune-compromised as a result of cancer treatments. The father is a lawyer who decided to self-isolate with his new partner, her daughter, and her parents are their cottage in Thornbury, Ontario. This arrangement created a situation where the child would reside at the cottage during the father’s parenting time, which was some distance away from Toronto where the mother lives.

 

The mother's motion

 

The mother brought an urgent emergency motion seeking temporary sole custody of the child and an order that the child would reside with the mother for the duration of the COVID-19 pandemic. In addition, the mother sought to suspend the father’s in-person access, or in the alternative, an order that he not attend at the cottage or invite third-parties into his home.

 

The mother’s argument was that the father’s self-isolation at the cottage posed an enhanced risk to her health and was in breach of public health orders advising against gatherings of more than 5 people who are not from the same household. The mother claimed in particular that as the father did not reside with his new partner prior to the pandemic, he cannot suggest that they have now formed a single household.

 

The father's response

 

In response, the father argued that the current arrangement was mutually beneficial for the child and everyone else involved and should therefore continue. The father submitted that residing with his new partner and her parents allowed her parents to take care of the child when needed and also enabled the child to spend time outdoors without encountering others since Thornbury had lower population density. The father stated that everyone residing at the cottage with him was following the appropriate safety measures and that they do in fact constitute a single household, and therefore were not in breach of any public health orders.

 

Should existing court orders and parenting agreements continue during COVID-19?

 

There is a presumption that existing court orders and parenting agreements should continue unless a parent’s lifestyle or behaviour raises sufficient concerns about parental judgment such that direct parent/child contact should be limited, as outlined in Justice Pazaratz’s recent decision of Ribeiro v. Wright, 2020 ONSC 1829. In this case, the question for the Court was: Should the existing parenting arrangement be changed in light of the father’s conduct and the prevailing public health orders so that the child’s best interests are protected?

 

The Court’s view

 

The court held that the father’s arrangements were reasonable. There were not concerns regarding parental judgement that would warrant suspending direct parent/child contact. The court was of the view that the father’s decision to form a single household with his new partner and her parents provided substantial benefits to all member of the household, including the child. The fact that the father did not reside with his new partner prior to the pandemic did not preclude the formation of a single household during the pandemic. The court held that self-isolating at the cottage did not pose increased risks to the mother, as the father would have contact with his new partner in Toronto when access to the child was facilitated between the parties.  The mother’s motion was dismissed.

 

Parents who wish to self-isolate with their children at the cottage during COVID-19 must be reviewed on a case-by-case basis, and there are circumstances where such actions have substantial benefits. Parents should not use the COVID-19 epidemic as a reason to deny reasonable temporary relocation to a cottage as a method of self-isolation or social distancing, and the best interest of the child is still of paramount consideration. 

 

If you are dealing with a complication arising from a situation of self-isolating or social distancing at a cottage as it applies to your family law and parenting matter, we invite you to contact a lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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In numerous ways our daily lives have had to be put on hold since COVID-19 and requirements to social distance must continue to prevail. In the recent case of Ribeiro v. Wright, 2020 ONSC 1829, Mr. Justice A. Pazaratz of the Hamilton Superior Court of Justice recently released the first endorsement with respect to family law and urgent matters of access dealing with COVID-19. In this case, an emergency and urgent Notice of Motion was brought by the Applicant on March 22, 2020, in addition to an Affidavit in support of the motion. The motion was brought seeking to suspend all in-person access due to COVID-19.

 

As this was the first case dealing with this issue, the court took time to ensure that they established the seriousness of COVID-19 and wanted to ensure that parents are maintaining access periods in good faith and with mutual respect to unnecessarily refusing access to the other parent.

 

The Court’s view

 

The court noted that now more than ever, children require the love and support of both parents, and existing parenting arrangements should be presumed to continue subject to any necessary modifications required to adhere to COVID-19 related precautions. The court noted that modifications could include one parent being in 14 day self-isolation as a result of recent travel or personal illness. In this case, the motion was brought due to one parent believing that the other parent would not obey the social distancing policy without sufficient grounds.

 

The triage judge did not authorize this mater to proceed as an urgent hearing at this time. While the court did not find that this case was urgent, it did acknowledge that any reckless exposure to COVID-19 would be met with zero tolerance. The court’s decision was without-prejudice to the issue being returned to court if more serious and specific COVID-19 related issues arise. Mr. Justice A. Pazaratz was of the view that suspending a child’s access to one parent may be contrary to their best interests due to the risk of emotional harm that can occur when a child does not get to spend time with both parents. 

 

Evidence required for an emergency/urgent motion during COVID-19

 

The court has stated that if a parent is concerned that COVID-19 creates an urgent issue relating to parenting, they are able to bring an emergency motion before the court, but they should not presume that raising such an issue in of itself will result in an urgent hearing. The procedure that the court will consider will include:

  1. The parent bringing the urgent motion will be required to provide specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 precautions.
  2. 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 including social distancing, use of disinfectants such as hand sanitizer, and compliance with public health and safety directives.
  3. Both parents will be required to provide a specific and realistic time-sharing proposal, which should fully address all COVID-19 considerations, in a child-focused manner.
  4. Judges will likely take judicial notice of the fact that social distancing is now becoming commonplace and accepted, given the number of public facilities that have now been closed as a result of the virus. The court was of the view that during these uncertain times, it would be beneficial for both custodial and access parents to spend time with their children in their home.

Your access during COVID-19

 

Parents should not use the COVID-19 epidemic as a reason to deny access to the other parent, and the best interest of the child is still of paramount consideration. Mr. Justice Pazaratz reiterated that during times of limited judicial resources, the court will be looking for evidence that parents have made good faith efforts to communicate, to show mutual respect, and to come up with creative and realistic proposals that demonstrate parental insight and COVID-19 awareness and precautions. 

 

If you are dealing with a complication arising from parenting/access and COVID-19 in relation to your family law and parenting matter, we invite you to contact a lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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