When it comes to legal services, experience and results speak volumes. So while we pride ourselves on our client focus and personal approach, at Bickhram Litigation we also recognize that our years of experience and our track record of positive results are just as important. As part of our litigation service, we seek to explore the basic, no nonsense approach to resolve disputes. This can include negotiation, mediation or fierce advocacy in the courtroom.
Estate Law Services
A challenge to a will is a proceeding where the capacity of the testator is being challenged at a point in time; or which someone seeks to overturn the last will and testament of a deceased. The common
grounds for challenging the validity of a will are:
- lack of testamentary capacity;
- lack of approval or knowledge of the contents of the will;
- the presence of suspicious circumstances or undue influence;
- non-compliance with the requirements of due execution; or
The onus of proof of testamentary capacity rests on those propounding the will who must establish,
on the balance of probabilities, that the deceased had the requisite level of testamentary capacity
when the will was executed.
At Bickhram Litigation we represent party’s objecting to the validity of the last will and testament and estate trustees who propound the last will and testament. For more information on will challenges, please contact us for a complimentary consultation.
Our statutory and case law imposes and obligation on a Deceased person to make adequate provisions of support for his or her dependants. A dependant can a be spouse, parent, child or sibling of the deceased.
If the Deceased did not make adequate provisions of support for his or her dependants, a dependant may commence an application for support against the deceased’s estate. Please note that an application for support must be commenced within six months from the date on which the certificate of appointment of estate trustee was issued, unless an application is granted for an order to extend the time to file.
For more information on dependent support applications, please contact us for a complimentary consultation.
When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse may be entitled to one half the difference between them.
Unless an intention in the Will is expressed to the contrary, the surviving spouse of a deceased person may elect to receive their entitlement from the deceased’s estate as set-out under the Will or an equalization payment, but not both.
Where there is no will, the surviving spouse must choose between electing to receive their entitlement according to intestacy laws of Ontario’s or on an equalization claim.
The election must be filed within six months of the death of the deceased spouse, unless an application is granted for an order to extend the time to file.
For more information on Family Law Act elections, please contact us for a complimentary consultation.
A power of attorney is an authority given by one person (the grantor) to another person (the attorney) to act on behalf of the grantor in conducting his or her financial affairs, or in making personal care decisions for the grantor. The authority given can be comprehensive so as to encompass all acts of a financial nature or all types of personal care decision making, or may be restricted to specific acts or types of decisions.
The attorney appointed by a power of attorney acts as a fiduciary and, as such, must account, must use reasonable care in acting, must not act in conflict with the grantor’s interests and must not make secret profits.
Given its broad authority, the Power of Attorney is the subject of various complaints, problems and litigation, such as inappropriate attorney behaviour, conduct and actions.
Power of attorney disasters are all to common today. For more information on Power of Attorney litigation, please contact us for a complimentary consultation.
Testamentary and Trust instruments have a tendency of being drafted in language that is unclear and ambiguous. This often leaves the estate trustee for an estate or a trustee of a trust feeling insecure as the wishes of the deceased or settlor is left open for interpretation. In such a situation, a court application should be commenced to obtain the opinion, advice and direction of the court to clarify the provision in the testamentary or trust instrument. Commencing an application will often provide the estate trustee with the piece of mind they need to protect them from liability.
Passing of Accounts refers to the presentation of formal accounts by a person in a fiduciary position, to the beneficiaries and the court.
A person in a fiduciary position is an estate trustee for an estate, a trustee for a trust, a guardian for an incapable person or a minor, or an attorney acting pursuant to a power of attorney.
Accounts that are examined by the court are:
1) approved or “passed” in the form as presented;
2) amended by court order and passed in amended form; or
3) not passed because the court is not satisfied with the accounts or some aspect of the administration of the estate reflected in the accounts.
A fiduciary person may choose to voluntarily apply to the court to have his or her accounts audited by the court or he or she may be forced to have them audited. It is important to remember that a person in a fiduciary capacity is in a position of trust and he or she may be called upon to account at any time.
Once the court has made an order approving the passing of accounts or approving the accounts as passed in amended form, the order is final against all those who were served with the Application to pass accounts.
At Bickhram Litigation we represent both party’s who object to the passing of accounts and fiduciaries who are applying to have their accounts passed.
For more information on the passing of accounts, please contact us for a complimentary consultation
It sometimes happens that disputes arises between the beneficiaries and estate trustees, or between estate trustees themselves. Unless there is some applicable provision either in the will or in a statute permitting an estate trustee to resign, recourse to the court may be necessary to resolve the dispute. The court may order the removal and replacement of an estate trustee.
At Bickhram Litigation we represent both beneficiaries and estate trustees in removal proceedings. For more information on estate trustee removal proceedings, please contact us for a complimentary consultation.
In determining the amount of compensation an estate trustee is entitled to, the courts refer to a court-recognized tariff. This is not a legislated tariff but has developed as a guideline in determining the quantum of compensation an estate trustee is entitled to.
An estate trustee should not expect that all that is necessary to obtain compensation under the tariff is to set out the calculations and submit the statement of compensation with the accounts to be passed. Nor should beneficiaries simply accept a compensation claim because it is consistent with the tariff amount. In fact, developments in the courts of many jurisdictions suggest they are increasingly looking to evidence to substantiate the quantum of compensation claimed by the estate trustee.
At Bickhram Litigation we represent both beneficiaries and estate trustees in challenges to compensation claims. For more information on the compensation that an estate trustee is entitled to, please contact us for a complimentary consultation.
Administering an estate can be a lengthy process with many steps.
Some of these steps include:
- Making funeral arrangements
- Identifying, securing and dealing with assets
- Obtaining a Certificate of Appointment of Estate Trustee (a.k.a. probate)
- Identifying and paying valid debts and claims against the estate \ Filing tax returns
- Dealing with any legal issues that arise
- Identifying, locating and distributing the balance of the estate to the rightful heirs and/or beneficiaries.
For more information on administering an estate, please contact us for a complimentary consultation.
Family Law Services
The finding of a person being incapable triggers the provisions under the Substitute Decisions Act, which allows a person to apply for guardian of an incapable person.
The appointment of a guardian for an incapable person in the Province of Ontario has the effect of bestowing comprehensive powers upon the guardian to manage an incapable person’s property and person.
However, our laws in Ontario prohibit a court from appointing a guardian for a person if:
- a court is satisfied that the need for decisions to be made will be met by an alternative course of action that does not require the court to find the person to be incapable of managing property or making personal care decisions; and
- is less restrictive of the person’s decision making rights than the appointment of a guardian.
For instance, if the person had a valid Power of Attorney, a court finding of incapacity may not be required.
At Bickhram Litigation we represent both party’s applying to be appointed as a guardian and party’s challenging the appointment of a guardian in guardianship disputes.
The Consent and Capacity Board is an independent body created by our provincial government. Generally, the board addresses very broad range of capacity issues for a person, however most notably the board deals with the involuntary detention of a person in psychiatric facilities and the capacity of a person to make decisions.
The Consent and Capacity Board also deals with applications from substitute decision makers that address the amendment, termination or appointment of a substitute decision maker as well as a wide range of issues regarding the decisions making for incapable persons.
For more information on issues regarding the Consent and Capacity Board, please contact us for a complimentary consultation.
The Office of the Children’s Lawyer is a law office in the Ministry of the Attorney General which delivers programs in the administration of justice on behalf of minors with respect to their personal and property rights.
In the context of estates and trusts, The Children’s Lawyer represents minor beneficiaries and unborn beneficiaries in estate and trust cases which include:
- challenges to the validity of a will;
- will interpretation applications;
- applications for removal of executors and trustees;
- claims for support under the Succession Law Reform Act;
- applications to vary a trust;
- division of property claims under the Family Law Act; and sale or mortgaging of minors’ property
For more information on the Office of the Children’s Lawyer, please contact us for a complimentary consultation.
The Office of the Public Guardian and Trustee is part of Ontario’s Ministry of the Attorney General.
Generally, The Office of the Public Guardian and Trustee delivers a unique and diverse range of services that safeguards the legal, personal and financial interests of mentally incapable individuals and estates. It also plays an important role in helping to protect charitable property in Ontario. The Office of the Public Guardian and Trustee provides these people with the benefit of informed decision-making about these matters if there is no one else who is available to do this for them.
For more information on The Office of the Public Guardian and Trustee, please contact us for a complimentary consultation.
The only ground to obtain a divorce in Canada is “breakdown of the marriage”. A breakdown of the marriage can only be established in three ways:
- the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined and are still living separate and apart at the commencement of the proceeding;
- the spouse against whom the divorce proceeding is brought has, since the marriage was celebrated, committed adultery; or
- the other spouse is living in conditions where physical or mental cruelty are apparent and intolerable.
For more information about obtaining a divorce, please contact us for a complimentary consultation.
Custody refers to the right and responsibility of a parent to make major decisions for his
or her child. Major decisions are generally accepted to include those concerning education, religion, and non-emergency health care.
Sole Custody means that one parent makes all major decisions for the minor child.
Joint Custody means that both parents make major decisions for the minor child jointly. Joint custody arrangements vary tremendously including ones in which the children divide their time equally between two parents’ homes to ones in which the children maintain a primary residence with one parent.
For more information about custody, please contact us for a complimentary consultation.
Access means the time that the non-custodial parent has the child in his or her care. Access includes the right to make inquiries about a child and to be given information about the child’s health, education and welfare.
Generally, there is a presumption that regular access by the non-custodial parent is in the best interest of the child. This presumption is based on the assumption that regular contact with the non-custodial parent is in the best interest for of the child.
For more information about access, please contact us for a complimentary consultation.
Both parents have a responsibility to financially support their children. If you do not have custody, the amount of child support you must pay is based on your income and the number of children.
Federal and Provincial Child Support Guidelines (the “Guidelines”) prescribes a method to determine a payor’s income. The starting point is the payor’s total income shown on his or her income tax return as adjusted in accordance with Schedule III of the Guidelines.
The Table amounts for child support reflect average costs for children’s expenses. The recipient of child support does not pay tax on the child support received. Each province and territory has a separate Table. The applicable Table for the Province of Ontario may be found here.
For more information about child support, please contact us for a complimentary consultation
In addition to the Guidelines amount, a court may order the payment of all or a portion of an itemized list of special and extraordinary expenses such as day care, child care, camp, education, post-secondary expenses, extracurricular expenses etc.
Whether an extra-curricular expense is “extraordinary” in nature and thereby qualifying as a special or extraordinary expense is determined subjectively after consideration of the family’s means and pre-separation spending pattern.
For more information about special and extraordinary expenses, please contact us for a complimentary consultation.
Spousal support is gender-neutral. Husbands and wives can pay and receive spousal support.
A person is entitled to spousal support if they were married or cohabited outside of marriage and met the legal definition of having cohabited continuously for a period of not less than three years or who have cohabited in a relationship of some permanence and are the natural or adoptive parents of a child.
Two common issues that often arise when a spouse is considering spousal support is the quantum and duration of support.
Given the changes to the Divorce Act, same sex couples who marry are covered by the definition of “spouse” and are, therefore, entitled to apply for spousal support if the marriage breaks down. There are two sources of guidance that our law gives our courts:
- Depending on the governing statute, the Divorce Act and the Family Law Act set out a list of factors for the court to consider in determining the quantum and duration of support; and
- The federal Department of Justice released Spousal Support Advisory Guidelines. The Spousal Support Advisory Guidelines include tables laying out expected ranges of support that a judge may take into account in determining the quantum and duration of support. It is important to note that unlike the Child Support Guidelines, the Spousal Support Advisor Guidelines are mere recommendations and the courts are not required to follow them.
For more information about spousal support, please contact us for a complimentary consultation
Upon a divorce The Family Law Act mandates equalization of the family’s “net family property”. Net family property is the difference between a spouse’s net worth at the time of marriage breakdown and at the date of the marriage.
An equalization of the family’s net family property is based upon the premise that marriage is an equal partnership regardless of how particular spouses divide up their areas of responsibility; thus the fruits of the marriage should be divided equally.
Generally, all property is included in net family property regardless of its nature; however there are exceptions to this rule.
For more information about property division, please contact us for a complimentary consultation.
Generally speaking there are three types of domestic contracts: separation agreements, cohabitation agreements and marriage contract.
Every separated couple who does not litigate to the point of obtaining a judgment after a trial deal with all rights and obligations arising from the relationship and its breakdown by setting-out mutually agreeable terms in a separation agreement.
Marriage contracts are entered into prior to marriage or after marriage but prior to the breakdown of a marriage. The Family Law Act, sets out the terms that can and cannot be included in a marriage contract.
Cohabitation agreements are usually entered into by unmarried couples. They can be signed before they start cohabiting or while they are doing so. Cohabitation agreements are subject to the same limits as marriage contracts.
For more information about domestic contracts, please contact us for a complimentary consultation
Domestic violence is an unfortunate reality that spouses deal with during the breakdown of the marriage. Generally, in cases involving domestic violence restraining orders will be needed to ensure the safety of the spouse and the children.
For more information about restraining orders, please contact us for a complimentary consultation
A final order under either the Divorce Act or the Family Law Act may be varied, if either parent can demonstrate a material change in circumstance which, if known at the time, would have likely resulted in a different order.
For more information about varying a prior Order or Agreement, please contact us for a complimentary consultation.