Estate lawyers advise their clients that there are key milestones in life that should trigger a review of estate plans and, in particular, Wills. Marriage, the birth of a child, a dramatic change in wealth, separation and divorce are some examples.
It comes as a surprise to many people that marriage automatically renders a Will signed prior to the wedding invalid (unless the Will was entered into “in contemplation of marriage” and this is specifically referenced in the Will). Perhaps more surprising to people, however, is the fact that the breakdown of a marriage – either separation or final divorce – does not have the same effect.
Separation has no effect on a Will whatsoever. In the absence of a separation agreement limiting a spouse’s entitlement, Read the rest of this entry »
On January 12, 2012, the Federal government filed pleadings in a Toronto case commenced by a non-resident same-sex couple seeking a divorce. The documents shocked many people and essentially, told thousands of same-sex couples who came to Canada from out of the country since 2004 to get married that they are not legally wed.
In the specific case in which the documents were filed, the couple wed in Toronto in 2005 and cannot divorce because (according to the documents) their marriage was not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside. Read the rest of this entry »
When is it fair to compel a defendant to produce surveillance evidence – before or after a defence medical examination?
In Aherne v. Chang, [2011] ONSC 3846 (Ont. Sup. Ct.), the defendants argued that they were not obligated to disclose their surveillance evidence until the moment they produced their defence medical report.
In keeping with the principle that expert witnesses are to take a non-partisan role in proceedings, Justice Perell upheld the decision of Master Short and found that the privilege associated with surveillance evidence was waived upon it being disclosed to the medical practitioner who conducted the defence medical examination.
Such disclosure was held to be supported by the existing law and deemed to be “procedurally fair, efficient and productive to the settlement or adjudication of the lawsuit”.
Early disclosure was also found to be consistent with the policy of the modern Rules of Civil Procedure, and to reduce the risk of ambush and surprise being utilized as tactical weapons in the adversarial system of adjudication.
It is hoped that Justice Perell’s decision will lead to personal injury disputes being resolved faster and in a more expeditious manner.
Read the rest of this entry »
The British Columbia Court of Appeal has recently affirmed the trial decision of Nesbitt v. Neufeld. In this case, the father used the internet and Facebok to publicly disparage his child’s mother. He was ordered to pay her $40,000 for defamation and invasion of privacy. The amount was made up of special legal costs in addition to damages.
The decision is thought to be unique and there are not many of its kind. In fact, there does not appear to be any other social media defamation cases of family members in Canadian judgments. Read the rest of this entry »
We are estate lawyers and business lawyers in Toronto who keep abreast of new legal developments.
The Christmas season is behind us and the annual speculation over immaculate conception forgotten for most. A new tort was born just before the holidays and unfortunately not accorded much fanfare. New torts are almost as rare as shining stars in the East and deserve to be either publicly celebrated or vilified.
The new tort is invasion of privacy. Or perhaps more accurately stated, the old tort of invasion of privacy been has now been restated to expressly include intrusion upon exclusion. Or put another way, a new leg of the old tort has grown. Or perhaps an old leg of an old tort has now merely been recognized. Or put another way …
Whatever the proper academic analysis of the jurisprudence may be, the bottom line is that the Ontario Court of Appeal did something it rarely does. In a one in a thousand ruling the Court would step up to recognize a new remedy for the 21st century and then lay out its reasons in a laudable display of plain language.
Judges and lawyers are by training slaves to precedent. Every time an action is commenced in a Court the hard question is always asked – what is the legal cause of action? If there is no cause of action, one can expect the defendant to quickly move to strike the statement of claim for failing to disclose a cause of action. 999 times out of a thousand the defendant will succeed on this motion. Read the rest of this entry »
