Severance of Joint Tenancies

Severance of Joint Tenancies

The severance of joint tenancies is an increasingly important issue in estate litigation. It can occur without the registered joint owners even when knowing it if their conduct is inconsistent with joint ownership.

We often assume that property, registered in joint tenancy, will automatically pass to the surviving joint tenant(s) upon the death of another joint tenant.

This is, however, not always the case. As demonstrated in the recent Pecore and Madsen cases from the Supreme Court of Canada, one possibility is that the surviving joint tenant actually holds the property in trust for the estate of the estate of the deceased.

A second option, which we will examine in this paper, is the possibility where joint tenancies have been somehow terminated prior to the death of one co-owner.

Legal practitioners should always consider the question of whether property, apparently held in joint tenancy, indeed remained in joint tenancy at the time of death.

Subject always to the principles set out in Pecore, where a joint tenancy has not been terminated prior to a joint tenant’s death, then the property will automatically pass to the surviving joint tenant.

On the other hand, if the joint tenancy has been somehow terminated, then the deceased’s share in the property will be included in his or her estate and distributed accordingly.

Severance of Joint Tenancies

The legal process of converting a joint tenancy arrangement into a tenancy in common, is referred to as “severance”. The distinction is important because of the right of survivorship which attaches to a joint tenancy but not to tenants in common.

It is possible to sever a joint tenancy either intentionally or inadvertently. Where a tenancy in common has been created prior to the death of one owner, the deceased’s property interest will not pass the other owners, but rather will form part of the deceased’s estate.

The severance of the joint tenancy can have a very significant effect on the outcome of both matrimonial and estate litigation. Recently this is especially so because real property increasingly represents the major asset owned by the Deceased.

Requirements of Joint Tenancies

Our law presumes joint owners to hold as tenants in common, rather than as joint tenants unless the title of the property specifically describes the owners as “joint tenants”.

In addition to the form of registration, there are four essential pre-conditions of ownership in joint tenancy. These are known legally as the “four unities” . In the absence of any of these four unities, the law presumes the owners to be tenants in common, and not joint tenants.

Briefly, the four unities are the following;

1) Unity of Interest

The interest of all joint tenants must be identical in duration, extent, and nature. For example , two joint owners would each have 50% , or four joint owners would each have a 25% interest. (Thus a 30/70 per cent ownership can exist only as for tenants in common.)

2) Unity of Possession

Each joint tenant must have an undivided share of the property at the same time as the other joint tenants. No joint tenant can have the exclusive right to possess the whole property. ( Possession in this context refers to the actual ownership of the property, and not actual physical occupancy.) The concept of an undivided share means that there is no actual division of any kind in the property. From a legal perspective, there is only the whole property, there is no such thing as a division of the whole;

3) Unity of Time

The interest of all joint tenants must be created at the same time and for the same period. Each joint tenant must receive his or her interest at the same time and the interest must be of the same duration.

4) Unity of Title

Each joint tenant must have an equal title to the property, created by the same legal document. The document creating the title may be a transfer document, a will, a trust declaration, a deed of gift, or contract. What is crucial, however, is that it be the same legal document which creates each of the respective interests as joint tenants.

Should any of these four unities fail, this may cause the severance of the joint tenancy, and create a tenancy in common.

Acts Severing a Joint Tenancy

The leading English case is Williams v. Hensman ( 1861) 70 E.R. 862. Here the court held that a joint tenancy may be severed in three different ways.

1) By an act of one person acting on his or her own share; ( i.e. Mr. Smith registers a transfer from himself to himself at the land title office).

In other words, one joint tenant, without the consent of or even notice to the other tenants, may deal with his interest in such a way as to destroy one of the unities. In British Columbia our Land Title Act, s 18 permits such a transfer to sever a joint tenancy;

2) By mutual agreement

This typically occurs when all of the joint tenants enter into an agreement which expressly purports to sever the joint tenancy. Most often this occurs during a marriage breakup. It may be set out in a separation agreement or court order. Where, however, an agreement does not specifically address the severance of the joint tenancy, our courts often require that the parties establish severance by mutual course of conduct. McKee v. National Trust (1975) 56 D.L.R. (3d) 190)-;

3) By any course of dealing that intimates that the interests of all were mutually treated as constituting a tenancy in common.

Many acts can cause the severance of the joint tenancy, sometimes unwittingly. For severance by conduct, however, there must be mutuality of intention to treat the ownership as a tenancy in common. Both joint tenants must openly and mutually treat the tenancy as a tenancy in common. For example, a declaration of irreconcilability under the Family Relations Act, RSBC, will sever any joint tenancy ownerships of property held by the couple.

Case Discussion: Joint Tenancies

Most reported cases seem to involve the question of “mutual treatment” as tenants in common i.e. whether or no the parties carried out a course of conduct sufficient to enable the court to find their interests as constituting a tenancy in common.

Commonly the courts seem to focus on negotiations or actual agreements between the parties in respect of the property in question. These have been found to be evidence of an intention to treat the ownership interests as a tenancy in common.

In Schofield V. Graham (1969) 6 D.L.R. (3d) 88, a husband and wife had purchased property initially as joint tenants. Years later, when their marriage was dissolved, a dispute arose regarding the ownership of the property. The wife commenced an action for a declaration that each owned an undivided one half interest as joint tenants. That action settled prior to trial on the basis that the property would be listed for sale, and the proceeds divided equally. Prior to final sale, however, the husband died and the wife claimed full ownership of the property as a surviving joint tenant.

The wife’s claim was denied. The court held there was sufficient evidence to conclude that the parties intended to destroy their unity of possession. Therefore it ruled the joint tenancy had been severed.

Perry v Perry Estate

This decision was followed in Perry v. Perry Estate 39 E.T.R. (2d) 115, an Alberta decision. Here a couple divorced but no court order was made with respect to the family home registered in their names as joint tenants. The home was sold, however the husband died before the sale proceeds were distributed.

Once again, the court ruled that the joint tenancy had been severed. The court found that the finalization of the divorce and the decision to sell the home indicated that the parties intended to terminate the unity of possession. They said the agreement to sever was implicit in the parties’ actions. Accordingly the wife was only entitled to one half of the proceeds of the sale, with the other falling into the husband’s estate.

Feinstein v. Ashford

Feinstein v. Ashford, 2005 BCSC 1379 is an example of the importance of careful analysis of various ownership interests. In this case one joint tenant, unbeknownst to the other joint tenant, signed a land transfer at his lawyer’s office to reregister title to their joint property as a tenancy in common. A few hours later he died.

A legal dispute thus arose as to whether this unregistered transfer was effective to sever the joint tenancy. The court held that, upon execution, the transfer was effective to sever the joint tenancy.

Walker v. Dubard

A leading British Columbia case is Walker v. Dubard 45 E.T.R. 209 (BCCA) This case involved a couple who owned several assets jointly. Shortly before her death due to cancer, the wife was apparently upset with her husband’s lack of sensitivity to her illness and wanted to avoid her estate passing to his relatives. Accordingly she both changed her will and transferred several assets out of joint tenancy. The husband made a claim under the Wills Variation Act and also sought declarations with respect to ownership of some of the joint assets.

One question was the effectiveness of some letters to the Deceased’s bank which had been drafted by the Deceased’s lawyer and signed by the Deceased. These letters spoke of her intention to sever the joint tenancy in respect of some investment certificates and bonds. They did not however specifically direct the bank to transfer these assets.

The appeal court upheld the trial judge’s finding that the joint tenancy had not been severed. The bank investments therefore passed to the husband by way of right of survivorship.

The court ruled that it is insufficient to sever a joint tenancy where there is merely a unilateral declaration of intent to sever, and nothing more, regardless of whether notice of that intent is given to the other joint tenant(s).

Zuk v. Zuk

The case Zuk v. Zuk 2007 BCSC 300 involved the untimely death of a wife in the midst of matrimonial proceedings against her husband. At the time of death, there had not yet been any declaration of irreconcilability made under the Family Relations Act.

The wife’s daughter continued the action as her personal representative and sought reapportionment of the former matrimonial should be made in favour of the estate. The husband argued that the matrimonial home was his alone as surviving joint tenant.

The court found there had been no severance. In doing so they cited Tompkins Estate v. Tompkins (1993) 76 B.C. LR (2d) (BCCA) in which Southin, J.A. stated in Para (9) she is “not wholly in accord with the learned trial judge’s conclusion that severance requires either alienation or agreement. I prefer to say that it requires either alienation or agreement or facts which preclude one of the parties from asserting that there was no agreement.”

Conclusion

It is not entirely clear what the courts may require in order to find where joint tenancies have been severed. Nevertheless it is safe to predict that in future there will likely be court challenges to estate plans using joint tenancies, on the basis that the conduct of the parties has resulted in a severance of the joint tenancy.

For example, we recently reviewed a file where a transfer of property had been made to a father and son as joint tenants. Simultaneously they signed a trust agreement wherein the son acknowledged that he actually held his interest in trust for both himself and his sister. This in fact occurred in Public Trustee v Mee (1972) 2W.W.R. 424.The court held that when the bare trust declaration was signed, the property was transferred to the trustee, and thus the joint tenancy severed. This lack of basic understanding of the 4 unities, defeated the joint ownership arrangement from the outset.

There seems to an unfortunate lack of consideration by some legal professionals of the effects of some legal documents on the nature of ownership of the property.

Further posts on Joint Tenancies include

The Nature of Joint Tenancy

Using Joint Tenancy for Estate Planning

Joint Tenancy & Property

 

Doctors Cannot End Life Support Without Consent- SCC

Life support 1

The Supreme Court of Canada has ruled that doctors cannot unilaterally choose to end life support services for Hassan Rasouli, an Ontario man who has been comatose since 2010.

In a 5-2 decision, justices for Canada’s highest court ruled doctors must first obtain consent from the man’s family, or, failing that, apply for permission from Ontario’s Consent and Capacity Board, a quasi-judicial body that addresses matters of consent under Ontario’s Health Care Consent Act.

The court stressed, however, that its ruling applied only to cases in Ontario, and did not address the broader ethical question of who has the final say — doctors or family — in end-of-life care for incapacitated people. In effect, it said that Ontario has a board set up for determining such matters, and that Rasouli’s case should have been brought before it.

Writing for the majority on the bench, Chief Justice Beverley MacLachlin upheld the decision of two lower courts rejecting the doctors’ position. The doctors had argued that Ontario’s consent act did not apply in Rasouli’s case because “consent is not required for withdrawal of life support that does not provide any medical benefit to the patient.”

Rasouli, a retired engineer, fell into a coma after undergoing brain surgery for a benign tumour in 2010. His attending physicians at Sunnybrook hospital gave him a poor prognosis with little chance of meaningful recovery from the coma, although his diagnosis was recently upgraded from “vegetative” to “minimally conscious.”

Rasouli’s family maintains his condition is improving and sought an initial court injunction to stop the doctors from ending life support.

 

Rasouli’s wife, Parichehr Salasel, refused consent to end life support, citing the couple’s Shia Muslim religion and a belief that her brain-damaged husband’s movements indicate some level of minimal consciousness.

Salasel screamed in approval when the decision came through Friday, saying she was “happy for all humans,” not just for her husband, who she said shows clear signs of consciousness.

The Rasouli case, at a glance

The history:In October 2010, retired engineer Hassan Rasouli underwent minor brain surgery for a benign tumour at Sunnybrook Hospital in Toronto. Days later, a bacterial meningitis infection left him severely brain damaged and comatose. With a prognosis that foresaw next to no chance of meaningful recovery, attending physicians in the intensive care unit announced plans to withdraw life support measures. Rasouli’s wife, herself a medical doctor, and two adult children felt it was too early to make a life-ending judgment call. The family got a court injunction to block doctors from pulling the plug. The case has since wound its way up to the nation’s top court.
The Question:The Rasouli case raised critical issues about end-of-life rights in Canada. Should physicians have final say on when to stop life-sustaining treatment when they feel it has become futile? Or should the families of incapacitated patients be able to defend their wishes for medical intervention and demand continued care? Clear guidelines were lacking.
The Significance:Supporters on both sides of the issue warned of wide-reaching impacts from any decision. Those in favour of allowing doctors to make the call said physicians could be more reluctant to admit patients to the ICU — where the sickest patients undergo aggressive treatment in hopes they will recover and be discharged — if they knew they wouldn’t have the ability to withdraw life support. Life-sustaining treatment is intended as a stop-gap on the road to recovery, they said, and sustained efforts to keep a body alive are painful, expensive and often do little more than delay the inevitable. Those supporting patient and family choice said Canadians have a right to care that is respectful of, and consistent with, a patient’s wishes, worldview and religious beliefs. Some worried the cost of intensive care might motivate decisions on the part of doctors, while the value of an individual’s life should be determined by those closest to him or her.
The Major Players:Sunnybrook Hospital doctors Brian Cuthbertson and Gordon Rubenfeld were appellants in the case. Rasouli’s wife, Parichehr Salasel, was the respondent on her husband’s behalf. Another significant player was Ontario’s Consent and Capacity Board, an intervener in the case. The board was one of the only provincial institutions set up to deal with questions of capacity to consent to medical treatment that fall under Ontario’s health acts, however it was created with a mandate of addressing mental health issues, not the ethical quandaries present in end-of-life care. Other interveners included: the Euthanasia Prevention Coalition, the Canadian Critical Care Society, Advocacy Centre for the Elderly, Evangelical Fellowship of Canada, and the HIV and AIDS Legal Clinic of Ontario.

The doctors argued withdrawing life-sustaining measures did not require consent from Rasouli’s wife, his surrogate decision-maker, because discontinuing care did not constitute “treatment” as set out under Ontario’s law. For the same reason, the doctors said, they did not require permission from the province’s Consent and Capacity Board to end care.

But MacLachlin wrote that the doctors’ interpretation of language in Ontario’s law was too narrow.

“First ‘treatment’ and ‘health-related purpose’ are not confined to procedures that are of medical benefit in the view of the patient’s medical caregivers,” she wrote.

The term “treatment” should be broadly interpreted to include “anything that is done” for a patient under a variety of circumstances — palliative, therapeutic, preventative, diagnostic or cosmetic, she said.

“In forestalling death, life support arguably falls within ‘therapeutic’ and ‘preventative’ purposes listed in the definition of ‘treatment,’ ” she wrote.

The court also rejected a third argument from the doctors, that requiring consent to withdraw life-sustaining practices in cases where there is no hope of recovery put them in an “untenable ethical situation.”

Dilemmas in end-of-life care are “inherent to medical practice,” MacLachlin said, and should not undermine provisions set out in the Act that clearly provide for a “meaningful role” of family and surrogate decision-makers in providing consent for treatment, including the discontinuation of life-prolonging measures and the beginning of palliative care.

“While the end-of-life context poses difficult ethical dilemmas for physicians, this does not alter the conclusion that withdrawal of life support constitutes treatment requiring consent under the HCCA,” MacLachlin wrote.

Further, the Act provides appropriate channels for dispute resolution through the Consent and Capacity Board, she said.

It is now up to the doctors to appeal to the board for a ruling on whether they can withdraw life support for Rasouli; however any decision rendered by the board can still be challenged in court.

A spokesman for Sunnybrook hospital told the Poston Friday that a decision has not been made yet on whether to dispute the decision by Rasouli’s family.

“There is a possibility of that. I should emphasize at this point, there has been no decision making around that …No decision has been taken about the consent and capacity board at this point,” chief medical executive, Dr. Andy Smith said.

“In terms of reflecting in general on how this has gone over the last three years, I do want to emphasize the extraordinarily positive relationship, the therapeutic relationship, between Mr. Rasouli’s family, the doctors, the rest of the care team. The care of Mr. Rasouli has been of the highest care and attention.”

While Dr. Smith “really appreciates the guidance the court has provided,” he said he is not worried that the decision will force Sunnybrook’s ICU to keep many patients on life support against the advice of their medical team.

“Sunnybrook has the largest ICU resource in the country. We have over 4,000 new, intensive care, really sick patients every year, that we take care of. When you look at our unit and all the other units across the land, these type of scenarios are not at all uncommon.”

“[But] It’s actually very common that the families work collaboratively with their doctors and their ICU teams to make the right decision in the case. That happens all the time.”

Justice MacLachlin was careful to state the court’s decision only addressed the issue of what Ontario’s act allows. Canada-wide, it did not address who “in the absence of a statute, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment.”

Rasouli’s case did not, she said, “require us to resolve the philosophical debate over whether a next-of-kin’s decision should trump the physicians’ interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed to be of little value.”

Five provinces and territories — Manitoba, B.C. Yukon, Quebec and Prince Edward Island – have similar legislation dealing with consent for medical intervention, but only Ontario has a board set up to deal with disputes. In the absence of such boards, dilemmas must be determined by the courts, Friday’s ruling concluded.

Justices Andromache Karakatsanis and Rosalie Abella formed the dissenting opinion on the court. In her written reasons, Karakatsanis held that Ontario’s Act should be interpreted the same way as common law, which she said does not “entitle a patient to insist upon continuation of treatment.

“Other courts have explicitly concluded that consent is not required for the withdrawal of treatment and that it is not appropriate for a court to interfere with medical doctors acting unilaterally professionally in the best interests of a patient.”

Appeal Court Strikes Down “Death With Dignity” Assisted Suicide

Death With Dignity

Carter v Canada (Attorney General) 2013 BCCA 435

The plaintiffs Ms. Carter and Ms. Taylor, both of whom suffered from intractable and progressive diseases and are now deceased, joined with others in bringing this civil claim challenging the constitutionality of the Criminal Code provisions against assisted suicide and euthanasia, specifically ss. 14, 21(1)(b), 21(2), 22, 222(1)-222(5), and 241 of the Criminal Code. The main focus of their case, however, was s. 241(b), which prohibits assisting another person to commit suicide.

The plaintiffs succeeded in the court below not withstanding the previous decision of the Supreme Court of Canada in R. v. Rodriguez (1993), in which s. 241 was found not to infringe certain rights under the Canadian Charter of Rights and Freedoms.

The trial judge carried out a lengthy review of the history of the impugned provisions, expert opinion evidence on medical ethics and medical end-of-life practices, evidence from other jurisdictions, and the feasibility of safeguards for physician-assisted suicide. She concluded that safeguards could be put into place to protect against the risks associated with physician-assisted dying; that the evidence did not support an increased risk for elderly individuals; and that the risks inherent in permitting physician-assisted death could be “very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” The trial judge recognized that the existence of “a different set of legislative and social facts” might not on its own warrant a fresh enquiry under s. 1 of the Charter, but found that a change in the applicable legal principles had also occurred since Rodriguez was decided, such that she was no longer bound by it.

In particular, the trial judge was of the view that Rodriguez had not considered the right to “life” in s. 7, nor the principles of overbreadth or gross disproportionality, which in her view were not fully formed principles of fundamental justice when Rodriguez was decided. As well, she found that s. 15 was open to her to consider, since the majority of the Court in Rodriquez had only assumed a violation of s. 15 and had proceeded to the question of justification under s. 1 of the Charter.

With respect to s. 15, the trial judge concluded that the impugned provisions created a distinction on the basis of the analogous ground of physical disability by denying disabled individuals access to physician assistance which was necessary for them to commit suicide, while able-bodied individuals had no legal impediment to committing suicide. She found that the effect of this distinction was to create a disadvantage by perpetuating prejudice and stereotyping. The trial judge concluded that the violation of s. 15 could not be saved by s. 1 because it failed the minimal impairment test and at the proportionality stage of the analysis.

With respect to s. 7, the trial judge concluded that the right to life was engaged because the prohibition had the effect of causing some people to end their lives sooner than they would if physician-assisted dying was available to them. As well, she concluded that these deprivations were not in accordance with principles of fundamental justice in that the effects of s. 241 were overbroad and grossly disproportionate to the interests of the state sought to be achieved by s. 241.

In the result, the trial judge granted two declaratory orders, one under s. 15 and one under s. 7. Each declaration was to the effect that the impugned provisions of the Criminal Code infringed the Charter and are of no force and effect to the extent that they prohibit physician-assisted suicide “by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully informed, non-ambivalent competent adult patient” who is free from coercion and undue influence, not clinically depressed, and suffers from a “serious illness, disease or disability (including disability arriving from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.” The declarations were suspended for one year, but the plaintiff Ms. Taylor was granted a constitutional exemption to enable her to obtain physician-assisted death during the one-year period. Ms. Taylor died prior to the hearing of this appeal. The Attorney General of Canada (“AGC”) appealed and various groups – some supporting the trial judgment and some opposing it – joined as intervenors.

Held: appeal allowed, Chief Justice Finch dissenting.

The majority (per Newbury and Saunders JJ.A.) found the trial judge was bound by stare decisis (or “binding precedent”) to apply Rodriguez. The test for the application of stare decisis begins with the question of what the earlier case decided. Dealing first with s. 7 of the Charter, the majority found that “life” as it appears in s. 7 had been considered in Rodriguez as a counterweight to liberty and security of the person. Since Rodriguez, courts have continued to regard the making of personal decisions regarding one’s body as falling under the “security of the person” or “liberty” rubric in s. 7, while “life” has been interpreted in its existential sense, not its qualitative sense. Although Chief Justice Finch suggested in his reasons that “life” includes the ability to enjoy various experiences and to make various decisions, the majority stated that those who have only limited ability to enjoy such blessings are no less “alive” and have no less a right to “life”, than able-bodied and fully competent persons. Charter protection cannot be extended to such experiences.

In any event, Rodriguez found that the prohibition on assisted-dying accorded with the principles of fundamental justice.

The majority reviewed the principles of fundamental justice as interpreted by the Supreme Court of Canada over the years. Although particular “tests” have varied, the essential exercise has been to evaluate broadly the rationality and normative balance struck by the law in question. The case law relating to arbitrariness, overbreadth and disproportionality illustrated that these were fluid concepts and that disproportionality was not a “new” principle of fundamental justice established by the Supreme Court of Canada in 2003 (in Malmo-Levine), as suggested by the trial judge. The use of different “lenses” employed under s. 7 from time to time does not mean that new principles have been established, making all previous decisions under s. 7 no longer binding.

Wrongful Death Damages Fail To Provide For Grief

GriefWrongful Death Damages Fail To Provide For Grief and Emotional Injury in BC

One of the glaring inequities in wrongful death claims in British Columbia is the failure of our legislation to provide authorization for the courts to make an award for compensation for individual grief suffering as a result of the loss of a close family member.

Simply put the court does not compensate or have authority to award compensation for injuries that may have been suffered as a result of a nerve a shock or grief or other psychological or emotional injury caused by, the negligence of the defendant. The court does not compensate for the indirect results or reaction to the death or injury of a loved one.

 

This can have disastrous results for parents who lose a child to the neglect or fault of another and are then informed there is no pecuniary award for grief-just financial loss.

In Devji v Burnaby 1999 BCCA 599 followed previous complicated case law as follows;

It must be remembered, however, that the claim must be for actual psychiatric or emotional injury caused by (not just resulting from) the actionable conduct of the defendant. Because of the dichotomy between principle and policy, in many cases there have been several sets of reasons for judgments and many significant dissents. This makes the law exceedingly difficult to rationalize. As will be seen, the divergence of opinion has been settled in the United Kingdom by policy decisions of the House of Lords in Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907 and White and Others v. Chief Constable of South Yorkshire and Others, [1999] 1 All E.R. 1 (H.L.). In White, at 41, Lord Hoffman formulated the circumstances in which recovery for psychological injury will be permitted:

(1). The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (e.g. spouses, parent and child) but must otherwise be established by evidence. (2) The plaintiff must have been present at the accident or its immediate aftermath. (3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else. (Emphasis added)

 

[5] The foregoing, however, does not state the law of this Province. The Supreme Court of Canada, in a number of cases, has adopted the approach to liability enunciated in Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.)which has since been overruled in the United Kingdom, and there is a previous nervous shock decision of a five-judge panel of this Court which is binding upon us to the extent of that which it actually decides. One of the questions to be decided in the case at bar is whether that case, Rhodes v. C.N.R. (1990), 50 B.C.L.R. (2d) 273, precludes recovery by the plaintiffs.

The Evolution of the Law Relating to Psychiatric or Psychological Injury Cases

 

[15] The first test for liability on the part of a defendant is reasonable foreseeability of particular harm as a consequence of his conduct. Thus, as was stated by Lord Denning in King v. Phillips, [1953] 1 All E.R. 617 (C.A.) at 623, “… there can be no doubt since Hay (or Bourhill) v. Young, [1942] 2 All E.R. 396 (H.L.), that the test of liability for shock is foreseeability of injury by shock.” As the cases show, however, this general proposition is directed not to the world at large, but only to that class of persons which might reasonably be within the contemplation of the alleged wrongdoer. It also seems clear that while foreseeability is one test for liability, it must be reasonable foreseeability, and that every foreseeable injury does not create a duty of care. This is confirmed by numerous judicial pronouncements, including a passage from the opinion of Lord Wilberforce in McLoughlin v. O’Brian, [1982] 2 All E.R. 298 (H.L.) to which I shall return later in these Reasons. At 303, that learned judge said:

That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear. I gave some examples in Anns v. Merton London Borough [1977] 2 All E.R. 492 at 498…, Anns itself being one. I may add what Lord Reid said in McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All E.R. 1621 at 1623: ‘A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee.’

[16] One of the difficulties arising from the simple test of foreseeability is to determine how it is to be applied in particular circumstances. As already mentioned, some eminent judges believe nervous shock cases can be decided solely by reference to the principle of foreseeability. Other courts have taken the view that the application of the foreseeability principle is too open-ended and that “control mechanisms” are required. This is illustrated by a comment of Lord Bridge in McLoughlin (supra), at 313, that it is readily foreseeable that a significant number of mothers exposed suddenly to a casualty or the consequences of a casualty that causes the death of their children might break down under the shock of the event and suffer psychiatric illness. I note, however, that this comment includes a “control mechanism” by limiting its operation to the defendant’s foreseeability of harm by nervous shock not to the world at large, but only to mothers. This, of course, was only an example within the context of the case under consideration but it illustrates the two points of view.

[17] As already stated, in the U.K. the contest between pure foreseeability and “control mechanisms” has already been decided in favour of the latter in the opinions in Alcock and White, which I shall discuss below. In Canada, the Supreme Court of Canada in Kamloops v. Nielsen, [1984]2 S.C.R. 2, included a caveat about public policy negating a duty of care not to cause reasonably foreseeable injury. More directly, “control mechanisms” in nervous shock cases were actually imposed in Rhodes. Nevertheless, it may be useful to record briefly how the law has evolved incrementally in the United Kingdom and elsewhere.

Wrongful Death Claims – Loss of Financial Support

Wrongful Death Claims

Yesterday I blogged about the Family Compensation Act of British Columbia which allows a spouse, parent, or child of a person whose death has been caused by the wrongful act negligence or default of another, to sue for compensation.

There are several heads of damages, and probably the largest in terms of pecuniary amount is that of loss of financial support.

The following cases are a brief summary of this head of damage:

In the decision Johnson v. Carter, 2007 BCSC 622, the court referred to some of the principles in the following paragraphs:

Here, the claim is for loss of financial support.

In Keizerv. Hanna, [1978] 2 S.C.R. 342, Dickson J. said the following at 351-52:

… The appellant is entitled to an award of such amount as will assure her the comforts and station in life which she would have enjoyed but for the untimely death of her husband. If one is speaking of contingencies, I think it is not unreasonable to give primary attention to the contingencies, and they are many, the occurrence of which would result in making the award, in the light of events, entirely inadequate. An assessment must be neither punitive nor influenced by sentimentality. It is largely an exercise of business judgment. The question is whether a stated amount of capital will provide, during the period in question, having regard to contingencies tending to increase or decrease the award, a monthly sum at least equal to that which might reasonably have been expected during the continued life of the deceased.

The conventional approach to determining an award for loss of future earnings is as follows:

1. A calculation is made of the income

which has been lost up to the date of the trial.

2. A calculation is made of the loss of

future earnings.

3. A reduction is then made for personal

consumption of the deceased.

4. Contingencies are reviewed to

determine if a further reduction is required.

[Cogar Estate v. Central Mountain Air Services Ltd.

(1992), 72 B.C.L.R. (2d) 292 (C.A.)]

 

Loss of support, like loss of future earning capacity, involves an inquiry into the unknowable:

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks must all be

considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

[Rosvoldv. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at [paragraph] 9]

[6] Our Court of Appeal in Brown v. Finch, 42 B.C.L.R. (3d) 116 also said at 1J3:

3. The basis upon which damages must be assessed is that stated by McFarlane J.A. in Cox v. Takahashi (1977), 5 B.C.L.R. 162 (B.C.C.A.) at 164:

It is well established that the measure of damages under the statute as interpreted by the Privy Council in Nance v. B.C. Bee. Ry., [1951] A.C. 601, 2 W.W.R. (N.S.) 665, [1951] 3 D.L.R. 705, is the pecuniary loss suffered by the dependants as a consequence of the death. That pecuniary loss is the actual financial benefit of which they have been deprived and includes financial benefit which might reasonably be expected to accrue in the future if the death had not occurred

Wrongful Death Claims and The Family Compensation Act

Tegemann v. Pasemko 2007 BCSC 1062 is a good case example of the principles for compensation under the Family Compensation act of British Columbia.

In this particular case the deceased was a 50-year-old mother, who is survived by her husband aged 49 at the time of the accident, and two young children aged six and three at the same time.

The plaintiff based his claim under the following sections of the Family Compensation act:

Action for death by wrongful act, neglect or default

2 If the death of a person is caused by wrongful act, neglect or default, and
the act, neglect or default is such as would, if death had not resulted, have
entitled the party injured to maintain an action and recover damages for it, any
person, partnership or corporation which would have been liable if death had
not resulted is liable in an action for damages, despite the death of the person
injured, and although the death has been caused under circumstances that
amount in law to an indictable offence.

Procedures for bringing action

3 (1) The action must be for the benefit of the spouse, parent or child of the
person whose death has been caused, and must be brought by and in the
name of the personal representative of the deceased.

The court or jury may give damages proportioned to the injury resulting from the death to the parties respectively for whose benefit the action has been brought.
The amount recovered, after deducting any costs not recovered from the defendant, must be divided among the parties in shares as the court or jury by their judgment or verdict directs.

In assessing damages any money paid or payable on the death of the deceased under any contract of assurance or insurance must not be taken into account.
In an action brought under this Act, damages may also be awarded for any of the following expenses if the expenses have been incurred by any of the parties for whom and for whose benefit the action is brought:

any medical or hospital expenses which would have been recoverable as damages by the person injured if death had not ensued;
reasonable expenses of the funeral and the disposal of the remains of the deceased person.

It is most noteworthy that the action may only be brought for the benefit of the spouse parent or child of the person whose death has been caused, and that it must be brought in the name of the personal representative of the deceased.

 

There are a number of heads of damages that can be claimed such as:

Loss of care, guidance and affection;
Loss of inheritance;
Loss of dependency;
Loss of household and childcare services;
Special damages.
Loss of financial support (usually the largest monetary claim)
loss of future earnings

Many of the heads of damages such as financial loss, are calculated with the assistance of actuaries and/or economists based on financial analysis of past income tax returns etc.

Needless to say it can be very complex to determine.

 

CONTINGENCIES OF LIFE

 

Once a judge reaches the various numbers of the heads of damages the judge often then takes into account the various contingencies of life such as the husband’s statistical chances for divorce and/or remarriage that should be deducted from such an award.

In this particular case the court deducted 20% of his calculation for loss of dependency, based on the reasonable expectation that the husband will remarry.

Capacity To Make a Will

Capacity To Make a Will

 

A person making a Will must understand:

 

The nature of the act of making a Will:

a. That he will die;

b. That the Will will come into operation on his death, but not before; and

c. That he can change or revoke the Will at any time.

 

2. The effects of the Will:

 

a. Who the executor is, and possibly why he or she is being chosen as
executor;

b. Who gets what under the Will;

c. Whether a beneficiary’s gift is absolute, or whether it is limited or
conditional in some way (for example a life interest, or a legacy
contingent on attaining a particular age);

d. Whether he has already made a Will and, if so, how and why the new one
differs from the old one.

 

The extent of the property being disposed of:

a. The extent of the property being disposed of;

b. The fact that any jointly owned property might automatically pass to the
other joint owner, regardless of anything the will says;

c. Whether there’are benefits payable on his death which would be
unaffected by the terms of the will: for example, the proceeds of an
insurance policy, or pension rights;

d. Whether he has any debts, and how they are to be paid

 

A person making a Will should be able to comprehend and appreciate the claims
to which he ought to give effect. Why are some beneficiaries preferred and others
possibly excluded? For example:

a. Some may be better provided for than others;

b. Some may be more deserving than others because they have been kind to
the testator;

c. Some may have upset, offended or disregarded him;

d. Some may be in greater need than others because of, say, their age or state
of health.

e. It is essential that no delusions should influence the testator and bring
about a disposal of his property which would not have been made if he
was not mentally disordered.

 

5. The testator should not be regarded as lacking testamentary capacity merely because he makes a will which would not be made by a person of ordinary prudence.

Do NOT Put Your Kids On Title Of Your Home

No Children OMonopolyn the Title Of Your Home

After witnessing parents putting their children on title to their home as joint tenants for over 40 years, I have emphatically concluded that in almost every instance is a bad idea.

While it sounds so simple that the parents simply add a child as a joint tenant to their title, this type of simple do-it-yourself estate planning remedy is typically very misunderstood and often abused.

The parent is often under the illusion that doing so is a cost-effective and simple remedy of avoiding probate fees, and given that probate fees are only 1.4% of the value of an estate over $25,000, it is a high price to pay in terms of risk given the minimal reward.

More worrisome to the estate litigator is the tendency of parents to see their children through rose-colored glasses.

They seem to want to believe that if they put the house in joint tenancy with one child, that the child will do the right thing and share the proceeds equally with siblings.

In my experience this rarely happens.

The other siblings will in such circumstances attack the gratuitous transfer of the title between the parent and a sibling, on the basis that it was not a true gift, and that the child owns the house in trust for the estate.(see Pecore v Pecore SCC 17) .

One of the biggest risks in areas such as Vancouver where there has been dramatic increases in property values, is that at the time of the transfer there is a deemed tax disposition and a loss of the principal residence exemption on the portion of the property subsequently held by the child. The child could find themselves owing a significant capital gains tax after the passing of the parent who share will remain his or her principal residence and be tax-free.

Other downside risks is that each owner on title has a right to possession of the property and this can result in stress and possible litigation such as a forced sale of the property under the partition act.

Another major concern these days is that the child spouse could have a strong claim for an interest in the property on separation or divorce if it was used for a family purpose.

Summary the child could be attacked by creditors or bankruptcy or encumber their at half of the property and thus put the parents household at risk.

My advice would be to have any practitioner who upon being requested to put children on title to delve very deeply into the family history and motivations of the client. It is necessary to point out the risk such as the possible loss of control, wrists of potential income tax consequences, please note that the probate fees saving is minimal, and that there are a number of risks that far outweigh any such simplistic estate planning tool.

Partition and Sale Rejected-Hardship

Forced Sale of Jointly Owned Property

Forced Sale of Jointly Owned Property

In Mowat v Dudas 2012 BCSC 454, the court exercised its discretion to refuse an order for a forced-sale of the Cypress Gardens condo development of 177 units owned by 135 different owners.

Each was a co-owner of the entire stratified complex. Some owners wanted the property sold , while others vigorously opposed same.

The court basically examined each of the numerous respondents circumstances and declared that each case must be examined separately to determine whether good reason existed to refuse the sale.

The court found that a sale would force many vulnerable people out of their homes, including young children, single parents, the elderly, the infirm, and people a very limited financial means. Many could simply not afford a comparable property nearby and would be forced to move far away.

Joint ownership of property whether it be in joint tenancy, tenants-in-common, or as a strata owner in a complex, is becoming increasingly common and more complex as time goes on.

It was only just over 40 years ago that we began to see strata lot ownership, which in itself has developed into a very complex area of law.

The following extract is a very good summary of the legal notions of serious hardship and the court’s discretion under the partition of property act of British Columbia

Discretion Under the Partition of Property Act

[141] All the parties to this petition agree that the Court has a discretion not to order a sale under the Partition of Property Act. The use of the word “may” in ss. 2, 7 and 8 has been held to create such a discretion: Evans v. Evans, [1951] 2 D.L.R. 221 (B.C.C.A.).

[142] Section 6 describes circumstances in which the Court “shall” order a sale, but with the limitation “unless it sees good reason to the contrary.” As set out above, s. 6 has no application in the present case, as it has not been shown that the owners of a 1/2 or upwards interest are in support of the petition.

[143] Counsel have referred me to a number of trial decisions in which the nature of the discretion not to order a sale has been considered, including Hayes v. Schimpf, 2004 BCSC 1408; Machin v. Rathbone, 2006 BCSC 252; Zackariuk Estate v. Chepsiuk, 2005 BCSC 919; Dunford v. Sale, 2007 BCSC 1422; Zimmerman v. Vega, 2011 BCSC 757; Richardson v. McGuinness, [1996] B.C.J. No. 2636 (S.C.); Riser v. Rawlings, 2008 BCSC 1050; and Jabs Construction Ltd. v. Callahan (1991), 61 B.C.L.R. (2d) 383 (S.C.). The most useful statements of principle, however, are found in the following decisions of our Court of Appeal.

[144] A useful starting point is Harmeling v. Harmeling (1978), 90 D.L.R. (3d) 208 (B.C.C.A.), a decision of our Court of Appeal sitting in a five-justice division. There the Court rejected any approach that would limit the discretion to cases where there was a want of good faith, or vexatious intent or conduct or malice in taking the proceedings. Rather, as Seaton J.A. wrote for the majority at p. 212:

In my view we should not limit the discretion in that manner. I think that we ought to accept without qualification the general statement that there is a prima facie right of a joint tenant to partition or sale and that the Court will compel such partition or sale unless justice requires that such an order should not be made.

[145] The nature of the discretion was further clarified in Bradwell v. Scott, 2000 BCCA 576. There, the section under consideration was s. 6, but the Court opined that the exercise of discretion under that section would not be significantly different from the discretion under the other sections of the Partition of Property Act. The Court held at paras. 43-45 that the exercise of discretion would depend on the particular facts of each case:

It does not appear from my reading of either the majority or minority reasons for judgment in Harmeling that the section then equivalent to our present s. 6 was under consideration. Rather, the section considered by both judges who wrote in Harmeling, as indicated above, was s. 3 (now s. 2), and in particular the words “may be compelled.” We are bound by the majority opinion that those words confer a discretion to refuse an order where “justice requires that such an order should not be made.”

This case, however, turns on the interpretation of s. 6, and the meaning to be given to the words “unless it sees good reason to the contrary.” Having said that, I am unable to see any real difference between the discretion conferred by this language and that described by Mr. Justice Seaton as arising under s. 3 (now s. 2).

To the extent that “serious hardship” was said in Dobell [Dobell v. Oman, [1998] B.C.J. No. 504, (6 March 1998), Vancouver Registry, A972782 (B.C.S.C.)] to be the test for “good reason to the contrary” I would respectfully disagree. Serious hardship to a respondent may be a proper ground for refusing an order for sale, as might lack of “good faith, vexatiousness or maliciousness” on the part of the petitioner. But these are not the exclusive measure of “good reason.” I agree with Mr. Justice Seaton that we should not limit the discretion by creating a general rule that might serve to justify refusal in any given case. The facts and circumstances of each case must be examined to determine whether a good reason, of whatever sort, exists for refusing the order.

[Emphasis added.]

[146] At paras. 34-35, the Court also addressed the question of onus or burden of proof:

In para. 9 of the chambers judge’s reasons (quoted above at para. 13) he said that it was not possible to determine who was at fault for the various confrontations and altercations which occurred between the parties. The Scotts contend that in leaving this issue unresolved, the chambers judge effectively placed upon them the onus of proving that the Bradwells were not entitled to equitable relief. They say this is an error because as the parties seeking equitable relief, it was for the Bradwells to establish their entitlement to same. As they failed to establish their entitlement, it is the Bradwells who should bear the risk of non-persuasion.

This argument is closely related to the Scotts’ jurisdictional argument, dealt with above, and in my respectful view it must fail for essentially the same reasons. There is no requirement under s. 6, either as a condition precedent to jurisdiction, or otherwise, for the petitioner to prove that he comes to court with “clean hands”, and is otherwise entitled to equitable relief. The section says the court must order sale of the property “…unless it sees good reason to the contrary”. This language is neutral in terms of onus. It is for the court to assess the evidence and to determine whether justice requires that such an order be denied. In practical terms, it would be for those opposing the application to put before the court evidence tending to establish a good reason for refusing it. In any event, I can see nothing in the statute or in the cases decided under it, to support the Scotts’ submission.

[Emphasis added.]

Serious Hardship

[147] As set out in Bradwell, serious hardship is one circumstance that may provide a proper ground for refusing an order for sale, although it is not the exclusive measure of when that discretion may be exercised.

[148] Phillips v. Phillips (1980), 24 B.C.L.R. 194 (C.A.) is an example of the kind of serious hardship that may justify the exercise of discretion to refuse partition or sale. The property in that case was jointly owned by a husband and wife. After separation, the wife continued to live in the property with the children, but the husband applied for partition and sale to raise money to pay off his loans. The trial judge found that the husband’s application was not vexatious, and granted the order. The Court of Appeal allowed the wife’s appeal and set aside the order for partition and sale on the basis that if the order were allowed to stand, the wife and children would be left without a home and would have to relocate. Although Phillips was a case involving a husband and wife, the Court of Appeal applied the general principles relating to partition and sale as set out in Harmeling.

[149] Similarly, in Bergen v. Bergen (1969), 68 W.W.R. 196 (B.C.S.C.), Seaton J. refused partition or sale because he held that the plaintiff husband’s conduct was economically oppressive. The premises were of a relatively low value, and if the property was sold, the wife would not have been able to provide adequate accommodation for herself and her children.

[150] In the present case, there is evidence that many of the respondents would suffer hardship if there were an order for sale of the Land.

Mental Health Withdraws Support For Psychiatrists DSM-5

 Mental healthMental Health and The Controversial DSM5

Psychiatrists like to put labels on mental disorders and use the DSM for such use.The new DSM-5 seems to be causing controversy within the mental health business.Considering that not long ago, the DSM classified such things as homosexuality as a mental disorder, it if not surprising that not all mental health workers agree on the content of various issues discussed in the DSM, now edition 5.The following article is reprinted from Christopher Lane’s blog on the issue, and is of interest to estate litigation due to such issues as mental capacity, personality disorders and the like.

The National Mental Health Withdraws Support for DSM-5

The latest development is a humiliating blow to the APA.

Published on May 4, 2013 by Christopher Lane, Ph.D. in Side Effects

Just two weeks before DSM-5 is due to appear, the National Institute of Mental Health, the world’s largest funding agency for research into mental health, has indicated that it is withdrawing support for the manual.

In a humiliating blow to the American Psychiatric Association, Thomas R. Insel, M.D., Director of the National Mental Health, made clear the agency would no longer fund research projects that rely exclusively on DSM criteria. Henceforth, the National Mental Health, which had thrown its weight and funding behind earlier editions of the manual, would be “re-orienting its research away from DSM categories.” “The weakness” of the manual, he explained in a sharply worded statement, “is its lack of validity.” “Unlike our definitions of ischemic heart disease, lymphoma, or AIDS, the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure.”

That consensus is now clearly missing. Whether it ever really existed remains in doubt. As one consultant for DSM-III conceded to the New Yorker magazine about the amount of horsetrading that drove that supposedly “evidenced-based” edition from 1980: “There was very little systematic research, and much of the research that existed was really a hodgepodge—scattered, inconsistent, ambiguous.”

According to Insel, too much of that problem remains. As he cautioned of a manual whose precision and reliability has been overstated for decades, “While DSM has been described as a ‘Bible’ for the field, it is, at best, a dictionary, creating a set of labels and defining each.” And not even a particularly good dictionary, apparently. Of the decision to steer research in mental health away from the manual and its parameters, Insel states: “Patients with mental disorders deserve better.”

Yet what the NIMH is offering as a solution the DSM’s fumbles and errors is not without major problems of its own, including because of the agency’s single-minded focus on biological psychiatry as the represented solution to all such ambiguities and confusions. Among the consequences of that emphasis, interest in symptoms will be radically curtailed: “symptom-based diagnosis, once common in other areas of medicine, has been largely replaced in the past half century as we have understood that symptoms alone rarely indicate the best choice of treatment.”

The agency’s year-and-a-half old attempt to devise an alternative to theDSM, its Research Domain Criteria (RDoC), stems from an effort, writes Insel, “to transform diagnosis by incorporating genetics, imaging,cognitive science, and other levels of information to lay the foundation for a new classification system. Through a series of workshops over the past 18 months,” he continues, “we have tried to define several major categories for a new nosology. This approach began with several assumptions:

A diagnostic approach based on the biology as well as the symptoms must not be constrained by the current DSM categories;
Mental disorders are biological disorders involving brain circuits that implicate specific domains of cognition, emotion, or behavior;
Each level of analysis needs to be understood across a dimension of function;
Mapping the cognitive, circuit, and genetic aspects of mental disorders will yield new and better targets for treatment.”
These assumptions spring from assertions and tautologies that have driven American psychiatry since at least the 1970s. The insistence that “mental disorders” be viewed and studied entirely as “biological disorders” shunts aside the APA’s supposed agnosticism on that front; but it also echoes Robert Spitzer’s effort (dating here from June 1976) to push through a similar proviso for DSM-III: “A mental (psychiatric) disorder is a medical disorder” (qtd. in Shyness 63). Even today, little in that assertion is self-evident.

True, the NIMH is leaving some room for discussion of environmental and psychological factors. “Self-reports” will also apparently be a “unit of analysis,” though interest in the thoughts and testament of patients seems characteristically small. The agency’s overwhelming focus is to remain on the brain as the alleged seat and cause of psychiatric suffering.

Given the broadly inconclusive research on such formidably complex elements, that prospect is dismaying to many and “potentially game-changing” to others. For others still, the NIMH’s “seismic” decision represents an unmistakable “kill shot to DSM-5,” and not a moment too soon. The manual’s authority won’t end overnight, but, given the implications of the NIMH’s decision, it also can’t and won’t stay as it has.

Nevertheless, the alternatives, at least those that the NIMH is presenting, may turn out to be equally problematic and unworkable. As Gary Greenberg noted recently in the New Yorker, “doctors in most medical specialties have only gotten better at sorting our suffering according to its biochemical causes … [but] psychiatrists still cannot meet this demand. A detailed understanding of the brain, with its hundred billion neurons and trillions of synapses, remains elusive, leaving psychiatry dependent on outward manifestations for its taxonomy of mental illnesses.”