Welcome to Injunction Junction

Joyce Blond Frank B.A., B.C.L., LL.M.

July 2012

There has been a lot in the news about injunctions recently and I have been asked to explain what they are and how they work.

An injunction is an order given by a Superior Court judge upon application by an individual who feels he needs one in order to safeguard or prevent the violation of his rights.

It orders a person or an institution:

* to do something.

* to not do something.

* to stop doing something.

It will be granted when the person asking for it appears to be entitled to it and it seems to be necessary to avoid serious or irreparable damage.

Once a person has been made aware of an injunction against him, he must obey it. If he fails to do so, he is guilty of contempt of court and can be fined up to $50,000. He may also be ordered to pay damages and can be imprisoned for a period of up to one year.

If an injunction is violated, the injured party can commence contempt proceedings. Under the Quebec Civil Code, no one can be condemned for contempt of court unless he is served personally by bailiff with a “special rule.” This is a document issued by the judge ordering the person to appear at court on at a fixed time to hear proof of the charges against him. It is obtained by filing a petition with the court asking that such a “rule” be issued.

At court, the person complaining of the violation must demonstrate without any reasonable doubt that the injunction has been violated.

The alleged violator may present a defense and explain why he violated the court order. The complainant must then refute the explanation.

The proof submitted to the court must leave no room for reasonable doubt. The judge must be convinced that the person was aware of the order, understood it and violated it deliberately.

Contempt of court is considered quasi-penal in nature and therefore, as in the case of a criminal offense, the person charged cannot be forced to testify.

Injunctions can be issued in a variety of situations, such as when a vulnerable person is exploited, or in cases of defamation or harassment, violation of a trademark or copyright, refusal by employees to provide essential services, refusal by a municipality to provide necessary services, or refusal by a school to provide classes, such as occurred during the recent tuition-hike protests in Montreal and Quebec City.

Violation of an injunction is considered contempt and contempt leads to punishment.

The underlying principle is the priority and respect to be given to the rule of law.

As responsible citizens, we know that without the rule of law our society would slip down the slippery slope into anarchy and mob rule.

The injunction is a legal tool that attempts to maintain a balance between those individual rights we are entitled to exercise in a free and democratic society and the collective rights that ensure the common well-being of members of that society.

Divorce is stressful as it is, but what happens to the condo?

Joyce Blond Frank B.A., B.C.L., LL.M.

June 2012

June is traditionally marriage time. In 1989, a law was adopted introducing the concept of family patrimony. It changed the way we look at property belonging to married couples.

This law is of public order, which means no one has the option of deciding they do not want it to apply to him or her. Upon marriage, a couple cannot renounce its provisions or ignore the effect it will have upon certain of their assets. Also, it supersedes the contents of a marriage contract.

A family patrimony is created by marriage or civil union. As long as a couple is domiciled in the province of Quebec, the provisions of the family patrimony law will apply to them and will have an effect upon division of assets at the time of separation, divorce or death regardless of where they may have lived at the time of the marriage.

The idea behind the creation of family patrimony was to promote economic equality between spouses by ensuring that certain assets belonging to and/or used by a couple during the marriage were equitably divided upon its dissolution.

The assets included in family patrimony are the family residences, the furniture and furnishings contained in them, motor vehicles used for family travel, pension plans and some retirement plans.

It is at the end or breakup of the marriage or civil union that the value of the family patrimony is established, according to specific rules set out in the Civil Code of Quebec. It does not matter who has a right of ownership in a particular asset. If it forms part of the family patrimony, it is included in the evaluation.

When we marry, certain property we possess will automatically become part of the family patrimony.

It may not be a first marriage and a person already owns assets at the time of their remarriage; when that marriage ends, either through divorce or death, the family patrimony ceases to exist and its net value must be calculated and divided.

People are often surprised to learn that their spouse has a financial interest in what they thought was completely theirs. In many cases, a substantial pension or RRSP has been accumulated by one of the spouses during the marriage and it can be shocking to learn that it must be shared with the other spouse.

There may be exceptions in cases of a marriage of very short duration or in cases in which one of the spouses has dissipated assets, but the general rule is one of equal division between the parties.

A specific problem occurs when a senior remarries and either already owns a home that becomes the family residence, or has inherited money from a deceased spouse and uses those funds to purchase a residence or such family patrimony assets as furniture or a car during the new marriage. The question arises as to what happens when the second marriage is dissolved by death or divorce.

A couple can settle the matter between themselves and agree on how to divide their assets. They may agree to sell their home, take back whatever amount they contributed and split the balance. Or they may agree that the original owner of the house keeps it and half the increase in its value during the marriage is divided between the parties.

However, when the parties cannot agree on the evaluation or how to divide the assets, the calculation of who gets what according to law can be complex.

The law provides a mathematical formula for calculating the value. Let’s assume you own a condo and remarry but continue to live in your condo as a family.

That condo will be included in the family patrimony. Upon dissolution of the marriage by death or divorce, assuming you are unable to mediate an agreement with your spouse or his estate, you will have to establish two things: the net value (market value less mortgage) of your condo at the time of the marriage and the increase in the market value of the condo between the time of the marriage to the time of its dissolution.

Before the value of the condo is divided, you will be able to take back an amount equal to the net value of the condo at the time of the marriage plus a portion of the increase in value corresponding to the ratio between the net value and market value of the condo at the time of the marriage.

What remains after you have taken this amount back will be equally divided.

Where inherited money has been used to purchase a family residence, those funds can also be reclaimed prior to dividing the value.

If family patrimony assets are bought and sold during the marriage using inherited funds, the calculation of how to divide the properties upon dissolution of the marriage becomes even more complex.

Calculations are also needed when improvements are made to a property using inherited funds or where such funds are used for the purchase of or invested in other family patrimony assets.

The calculations can be complicated and depend on the individual situation. There are no easy, immediate answers.

Student protests raise moral issues

Joyce Blond Frank B.A., B.C.L., LL.M.

May 2012

Under the Quebec Civil Code, parents have both the right and duty of custody, supervision and education of their child.

This is referred to as “parental authority” and should be exercised by both parents. Last year at this time I wrote about a parent’s financial obligations toward a child. This year, I want to consider the right and duty of a parent to supervise and educate their child.

Parents have a right to decide how their child will be brought up and educated. It must also be emphasized that they have a duty to do so. We are all aware of the recent student demonstrations supposedly carried out to get our attention to the objection to an increase in school fees. Such collective, public and organized expressions of opinion are permitted by our laws as long as they do not disrupt public order. What we have seen are students not only demonstrating, but repeatedly and deliberately causing public disruption, inconvenience and property damage. How can this be if we, as parents, have been carrying out our duty to supervise and educate? How can this be when teenage students announce a fight on Facebook, attend the fight as spectators and cheer as the victim is beaten, as occurred recently at a Hudson high school

The law accepts that a child’s parents are the best ones to look after his interests. The Quebec Civil Code contains a section from the Quebec Charter of Human Rights and Freedoms. It specifies that every child has a right to the protection, security and attention that his parents are able to give him. It provides that decisions must be made in the light of his interests and with respect for his rights. In so doing, his moral, intellectual, emotional and material needs are to be considered, as well as his age, health, personality and family environment.

These laws also declare that a child has the right to express himself and to be heard. Gone are the days when a child is to be seen and not heard. Nowhere, however, is it declared that a child has a right to riot. A child’s rights are further fortified by the International Convention on the Rights of the Child, of which Canada is a member. This latter document refers to the duty of parents to provide appropriate guidance and advice as to the exercise by the child of his rights. I wonder if we, as parents, are failing to provide that guidance and advice.

Parental rights are often discussed before the courts, especially on the occasions of family breakdowns and divorce hearings. Perhaps it is time for greater discussion of parental duties and obligations. Perhaps it is time for the law to take a hard look at what is meant by the duty to educate.

We know we must send our children to school. But what about the lessons of civic responsibility and moral duty, of acceptable behaviour of one human toward another, of how to acknowledge the rights of others when exercising our own?

If we are not providing a value system to our children, we are not educating them, we are not acting in their best interest and we are failing them. It is not only the welfare of the child that suffers, but society as a whole.

British Prime Minister Benjamin Disraeli, in a speech before the House of Commons in 1874, said: “Upon the education of the people of this country, the fate of this country depends.”

About 50 years later, H.G. Wells in his Outline of History said: “Human history becomes more and more a race between education and catastrophe.”

So as we celebrate Mother’s Day, let us think about what we can do for our children to enable them to become better people and better citizens.

The rights of unilingual anglophones are protected under law

Joyce Blond Frank B.A., B.C.L., LL.M.

April 2012

The provincial government has agreed to fund research into the needs and problems faced by anglophone seniors living in Quebec.

Today, all schoolchildren are immersed in the French language at an early age and most become bilingual adults. This was not always so and there are many anglo Quebecers who are not proficient in French.

There was a time when the Québécois language and identity required support to ensure its continued existence. However, it is now English that is in need of recognition and protection. We hear stories about a lack of communication in English by government bodies, about a shortage of health and social services in English, about individual acts of nastiness toward those unable to express themselves in French. What we don’t hear about is the other side of the story. But there are those who do understand that not everyone is bilingual and that their rights must also be respected.

My first example took place in the 2010 and involved the Ministry of Employment and Social Solidarity. A non-French-speaking person was refused financial assistance because he had failed to produce all the documents and information required. The person had been employed in the inspection and repair of large motor vehicles. He was forced to stop working because of a heart problem. At first he benefited from his employer’s disability insurance program. When this ran out, he asked for financial assistance from the local ministry office.

The office sent him a list, in French, of 14 different documents it wanted within 10 days. When he failed to send those documents, he was advised that his claim was refused as it could not be evaluated. He requested a revision of that decision but the decision was maintained.

He appealed to the administrative tribunal and explained that he had asked for an English version of the list but had never received it and that the agent in charge of his file did not speak English.

The judge based himself on the law that states: “The Minister must assist any person who requests it to facilitate the person’s understanding of and access to a measure, a program or a service. Among other things, the Minister must assist the person in making an application for financial assistance.”

The judge held that the employees of the local employment centre should have provided a list of their requirements in English. He noted that the claimant lived in an area that was predominantly anglophone. The government employees should have taken whatever measures were necessary to provide all information to the claimant in his language.

Consequently, the tribunal found that the claimant had not been able to provide the necessary documents because he had not had the necessary assistance to do so. The judge ordered that the payments be made to the claimant retroactive to the date on which he had first applied for them.

The judge said in his judgment: “Enfin, le tribunal se doit d’interpréter l’esprit des lois sociales de manière large et libérale en tenant compte du contexte globale d’une situation.”

The next story concerns a job opening for a lawyer with a youth centre near Val-d’Or. This was an area that serviced several English-speaking aboriginal communities and one of the job requirements was bilingualism. The complainant’s union contested the bilingualism requirement and the fact that the job had gone to someone with less seniority and demanded that the job go to him.

The youth centre argued that bilingualism was a reasonable requirement, justified by the fact that there was a large anglophone population in the area. The union argued that bilingualism was unnecessary, that it contravened the collective agreement, and that it violated the French Language Charter and the Quebec Charter of Rights and Freedoms.

In rendering judgment against the union, the tribunal looked at the Health and Social Services Act, Youth Protection Act, French Language Charter and Quebec Charter of Rights.

In rendering judgment, the tribunal pointed out that the Charter of Rights prevails over the language charter. Under the terms of the Charter of Rights, a distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the nature of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.

The Health and Social Services Act says that English speakers are entitled to receive health and social services in English and that the relevant institutions must develop a program of access to health and social services in English for the English speaking population in their area. The Youth Protection Act imposes an obligation on those working with children and parents to ensure that all parties understand each other.

The employer, the Youth Centre, had to be sure that the attorney it would hire would be able to ensure that the obligation to inform the child and his parents was carried out; that the meeting and preparation of witnesses that was an important part of the judicial process could take place and that communication with parents prior to a hearing was assured.

A unilingual attorney would not be able to do these things and knowledge of English was necessary to “accomplish the job.”

Because the attorney’s work concerned children, parents and others who were English-speaking, the requirement of bilingualism did not contravene the collective agreement.

These cases show that laws do exist to protect the rights of the anglophone community and that the courts will protect the use of English when called upon to do so.

Rental law catches up with the realities of senior care services

Joyce Blond Frank B.A., B.C.L., LL.M

March 2012

In November, we discussed how the law of Quebec sometimes created problems in determining those special cases in which a lease could be terminated upon giving three months notice. Problems arose when a person had to leave their home to enter a residence, because the law did not define what constituted a “foyer d’hébergement.”

The law has now spoken and new provisions came into effect on November 30. A residence is now defined in terms of the services it provides and the three-month notice provision has been reduced to two months.

Before November 30, a person could end his lease by giving a three-month notice that he had been “admitted permanently to a residential and long-term care centre (centre d’hebergement) or to a foster home (foyer d’hébergement).”

The problem was that the courts did not have proper guidelines with which to define these institutions, resulting in a certain amount of inconsistency.

Under the new law, a person can end his lease by giving a two-month notice that he has been “permanently admitted to a residential and long-term care centre, to a facility operated by an intermediate resource, to a private seniors’ residence where the nursing care and personal assistance services required by his or her state of health are provided, or to any other lodging facility, regardless of its name, where such care and services are provided.”

Personal assistance services are referred to as “services of a personal nature provided by the lessor to the lessee” and these services are now governed by the special rules contained in the Civil Code of Quebec pertaining to the leases of dwellings.

What is included in these services? The law provides a temporary answer that will remain valid until a new regulation is made under the Health and Social Services Act.

It includes “distribution of medication, invasive care involved in assistance with activities of daily living or administering medication, assistance with and supervision of eating, personal hygiene, dressing, locomotion, transferring in and out of bed or in and out of a chair or a wheelchair, and using the toilet or a commode chair, including encouragement to carry out such activities.”

Also included are the services listed in the form that completes the mandatory lease form required by Quebec law.

This additional form must be signed where the landlord provides special services because of the personal needs of the tenant. As mentioned above, the rights and obligations of landlords and tenants now also apply to the services rendered, including meals, laundry service, nursing and personal care.

One other important aspect of the new law is that, where a new or renewed lease includes services of a personal nature to be provided to the tenant, the landlord is obliged to specify that part of the rent which relates to the cost of such services.

When this lease is terminated, the tenant will only owe money for those services that were actually provided. This means that when a tenant gives his two-month notice but moves out a week later, and his premises have not been leased to another tenant prior to the notice period, he will be responsible for the rent owing for the premises but not for those services which he did not receive following his departure.

This is also true when the lease is cancelled due to death.

As this provision will take effect with regard to leases entered into or renewed after November 30, cases may arise where a two-month notice to cancel is given but the rent specified in the lease does not distinguish between the rental amount and the amount paid for services.

When the issue cannot be resolved, the courts may be called upon to decide.

Hopefully this legislation will do what it is supposed to: provide the rental board with guidelines in deciding cases where a two-month notice to cancel a lease has been given. It should also ease the financial burden on tenants, their heirs and representatives.

Be the agent of your own good fortune

Joyce Blond Frank B.A., B.C.L., LL.M.

February 2012

You are lucky enough to spend some time down south during the winter. Your son is in school in Montreal and you thought it might be nice to have him join you and the rest of the family over the Christmas holiday.

You phoned your travel agent in September and bought him a return ticket. The confirmation stated that he would travel at 8 am on December 24 and return January 12 on a 5:45 flight. Total cost: $560.83.

A month later, you received a notice that the flight on December 24 would leave at 1 pm instead of 8 am. Your email address changes in November and you advise your travel agent. Your son’s email ticket is sent on December 8 and the flight time is given as 8 am.

You’re down south awaiting your son’s arrival when you receive a telephone call from your travel agent informing you that your son did not show up for the flight. But you had no idea the flight time had changed back to 8 am because you never received the email ticket. You ask the travel agent to get you another ticket for your son but she informs you that she is unable to do so. You yourself are able to find one at a cost of $642.09.

As your holiday together comes to an end, you become uneasy about your son’s return flight and email your travel agent on January 10 and 11, that is, two days and one day prior to his scheduled flight. On January 11 at about 4 pm, you receive your son’s tickets, which the agent says were sent December 8.

A few days after your own return home, you ask your travel agent for payment of the $642.09, which you paid for the second ticket. Your letter is unanswered and so you go to small claims court.

The reason your son missed his original flight is that you didn’t know the time of departure had changed. The invoice you received stated clearly that it was your responsibility to confirm flight times. It even provided a telephone number to call and a website to look at.

The agent insists you received the invoice on September 1, but you say you didn’t. The agent also says they never received notification of your change of email address and the warning to verify flying times was also on the ticket emailed to the original address.

Will the judge believe you when you say you never received the ticket or the invoice, or will he believe the agent, who says she never received a change of email address and she did send the invoice on September 1.

The judge decided he did not have to determine the credibility because you and the travel agent had a contract for service. In this kind of contract, the agent had to provide a service to you for a price. The agent’s contract is a consumer contract and therefore governed by the Consumer Protection Act. The agent had to act in your best interest with prudence and diligence; the travel agent had to produce results. Furthermore, under the Consumer Protection Act, the travel agent cannot be exonerated from performing duties.

The agent should have provided you with all information pertaining to the flight time change, and if she failed to do so, she is to be held responsible for the damages that her failure has caused you.

The court, in this case, was sympathetic to you.

It placed a heavy burden on the travel agent and suggested that she should have made sure the time change information had been received, perhaps by telephoning instead of, or as well as, emailing.

The agent was ordered to pay $642.09 with interest and court costs. You got your money back this time. But I would strongly suggest to all travelers not to rely on winning in the court and to always verify departure times.

So you’re going to change your will. Be sure you do it right

Joyce Blond Frank B.A., B.C.L., LL.M.

December 2011

The holiday season is upon us and family relationships can be affected—for better and for worse. The get-together got you thinking. You arrive home and feel like changing your will. You know you can do it by yourself by writing out the changes or even writing a completely new will. But there are things to watch out for.

Our law tends to be formalistic and the laws pertaining to wills are no exception. The will you write yourself is called a “holograph will.” The form it must take is that it must be entirely written by the person making it and signed by that person without the aid of any mechanical process.

This type of will must be validated by the court after death, a process referred to as “probating the will.” Sounds simple enough.

But here’s what happened in the case of Mrs. L: When she passed away, a handwritten will was found in her purse. There was no question that it had been written by her, but she had failed to sign it. The law does provide some flexibility in that it confers a discretionary power on the judge to validate a will that does not meet all the requirements of form, so long as it meets the essential requirements and if it unquestionably and unequivocally contains the last wishes of the deceased. In other words, the defect in the form must not be a fundamental one, that is, an essential condition of validity. Unfortunately, it was decided that the signature of the testator constitutes an essential element of the holograph will. The fact that the will had been written around the time of the death and was found on her body did not make up for the fact that it had not been signed and the court refused to probate it. However, with regrets.

Mrs. A wrote her will in the margin of a puzzle book; it did not contain either a date or a signature. She gave it to a nurse to hold onto and the nurse mentioned it in Mrs. A’s medical file. A Superior Court judge concluded it contained her last wishes; he accepted the notation in the medical file and the testimony of the nurse in place of a signature and validated it. That decision was reversed by the court of appeal, which held that a notation in a medical file and the testimony of a nurse could not change handwritten notes in a puzzle book into a holograph will. Without a signature there was no will.

Mr. L drafted his own will using a laptop. He was very detailed in expressing his wishes and specified who would inherit and who should not. He then printed out the will. He wrote in the date and signed it; he also wrote the words “this is my will” and signed that statement as well. No witness signed the will, but a friend signed an affidavit that he recognized the signature of the deceased Mr. L.

The court held that the will failed to conform with the requirements as to form for the holograph will, which must be both written and signed by the testator without the aid of a mechanical device. It held further that the discretionary power given the judge to validate the will did not apply if the defect in form was fundamental.

Consequently, the fact that the will expressed the last wishes of the testator unquestionably and unequivocally could not override the fact that it failed to conform to the formalistic requirements of the law.

Although dating a will is not one of the fundamental requirements, it is a good idea to do so in order for people to know that it contains your latest wishes.

So if the holiday season motivates you to make a will—or change one—and you don’t feel the need to obtain professional help, remember to write it all out yourself, date it and sign it. Otherwise, your wishes may never be fulfilled.

Know when a residence is an hébergement

Joyce Blond Frank

November 2011

Certification for residences for the elderly is about to change. The proposed law hopes to tighten up the process.

The office of the ombudsman of Quebec, as the final recourse in the complaint procedure under the Act respecting health services and social services, reports that the ombudsman has processed 365 complaints since 2008, of which 89 per cent concerned seniors’ residences. He states that 45 per cent of these were related to lack of access to physical facilities, equipment not in working order, food quality and staff competence. Another 45 per cent were about abuse, inadequate sanitation, safety measures, threats and harassment. The balance concerned financial matters.

Looking at these figures, I was motivated to look into what constitutes a seniors’ residence from a legal point of view and this revealed some interesting situations.

Private residences for the elderly provide lodging as well as a wide range of services, such as meals, domestic help, personal and health services, security, and supervision. They require a certificate of compliance issued by a health and social services agency. This certificate was made obligatory in 2009 by a Quebec government regulation that provides rules that the residence must follow. One of those rules is that: “The resident and the resident’s close relatives must be treated with courtesy, fairness and understanding, and with respect for their dignity, autonomy and needs.” Does this imply that the regulation does not apply to establishments whose tenants may only be partially autonomous? We know that there are many people who are capable and autonomous for the most part but whose security may be compromised by continuing to live alone and unsupervised.

This issue has arisen in another form, namely that of being able to provide a three-month cancellation notice to a landlord to move out and into a seniors’ residence.

The three-month notice provision is found in the Civil Code of Quebec, which permits an elderly person who goes permanently into a “foyer d’hébergement” to cancel his lease upon giving three months notice. The term “foyer d’hébergement” has not been defined by the law and has been interpreted by the courts in two different ways.

One interpretation is that it applies only to a place that houses, helps and supports a person who is not completely autonomous or is restricted as to mobility or independence; the other interpretation is that it offers shelter and assistance to older people who require some support because of their age. Autonomy is not a determining factor.

In a recent case, the landlord contested the validity of the three-month notice before the Rental Board. The board had to decide whether the tenant was moving into a seniors’ residence or a “foyer d’hébergement.” It was decided that even if certain other services were available, because the resident was autonomous it was not a “foyer d’hébergement” and the three-month notice exemption to cancel a lease did not apply. It based its argument on the fact that the services provided a certain amount of comfort and quality of life but were no different from those offered in a luxury residence for seniors. To fall under the definition of “foyer d’hébergement,” it had to offer security and supervision as well as medical, nursing, readaptation, psychosocial and pharmaceutical services to persons without full autonomy.

Even if only one service, apart from lodging, is offered, a residence for the elderly is entered in the register of the health and social service agency and must be certified. The new regulation is attempting to define a seniors’ residence by the services offered, but at the time of this writing, that is still a work in progress. Should the law prove too restrictive, the certification process may be affected to the detriment of residents who will then not be protected by regulations relating to safety of the premises, qualifications of the workers and adequate supervision.

The regulation for obtaining a certificate of compliance provides that a new resident must receive, in writing, a list of all services offered plus their cost or, where applicable, “an indication that the residence offers no personal assistance service.” Included in these services are personal hygiene, eating aid, mobility aid, transfer aid and distribution of medications. Those entering a seniors’ residence sign the usual Rental Board lease and, where applicable, a mandatory schedule setting out the extra services to be provided owing to the tenant’s personal condition, including age or handicap.

However, when a disagreement or problem occurs, the wheels of justice tend to move slowly and there is no provision in the projected law for a situation where contracted services offered by the residence are changed or reduced or even if the residence closes. A resident receiving nursing services or food services cannot wait for a hearing before the Rental Board. Hopefully the new law will provide some measures to cover this problem. Meanwhile, protect yourself when choosing a residence by consulting an expert who will be able to advise you on the services, stability and reputation of the residence best suited to your needs.

With freedom of the press comes great responsibility

Joyce Blond Frank B.A., B.C.L., LL.M.

October 2011

It was in the year 1986 that The Senior Times was born. This is the same year that Elie Wiesel was awarded the Nobel Peace Prize, The Phantom of the Opera had its world premier in London, General Motors overtook Exxon as the largest company in the U.S.A. and most importantly, the Montreal Canadiens won the Stanley Cup. The anniversary of The Senior Times reminds us that freedom of the press is one of the fundamental freedoms, together with freedom of thought, belief, opinion and expression, granted us by the Canadian Charter of Rights and Freedoms.

Journalists report the news, comment on issues of the day and influence the public.

Former British prime minister Benjamin Disraeli said: “The press is not only free, it is powerful. That power is ours. It is the proudest that man can enjoy. It was not granted by monarchs; it was not gained for us by aristocracies; but it sprang from the people and, with an immortal instinct, it has always worked for the people.”

Napoleon said: “Four hostile newspapers are more to be feared than a thousand bayonets.”

With this freedom and power comes responsibility. Our courts have held that freedom of the press includes the right of journalists to gather and diffuse information. This is of fundamental importance when the information relates to our public institutions. But there is a balance to be maintained between the right of the public to be informed, freedom of the press, the right of individuals to privacy and the necessity to respect privileged communication. The courts are often called upon to weigh these issues when making decisions. In so doing they take into account the Quebec Charter of Rights, which states:

“Every person has a right to the safeguard of his dignity, honour and reputation”; and “Every person has a right to respect for his private life.” We learn much of what is happening in our own society and in the world through the press. Court hearings are public but in certain situations the law will give preference to the rights of the individual over the right of the public to know.

The Quebec Civil Code states: “The sittings of the courts are public wherever they may be held, but the court may order that they be held in camera in the interests of good morals or public order.” And again: “The judge may, in a special case, prohibit or restrict, for such time and on such conditions as he may deem fair and reasonable, the publication or broadcast of information pertaining to a sitting of the court.”

The American dramatist Arthur Miller wrote: “A good newspaper, I suppose, is a nation talking to itself.” We talk to ourselves and we talk to our readers.

Barbara Moser lit the spark and she and the entire staff at The Senior Times have kept the flame alive.

I take this opportunity to wish The Senior Times many more years of exercising its fundamental freedom to print the news, provide information, and stimulate thought and I thank it for giving me the opportunity to communicate with you, the reader.

Giving power of attorney isn’t giving up power

Joyce Blond Frank B.A., B.C.L., LL.M.

September 2011

How many of us, as we lay beside the pool or vacationed on the beach this summer, wondered why we always seem to be so busy during the rest of the year, or thought about how nice it would be to have someone else concern themselves with those little chores that are a part of everyday life.

There are times when it may be convenient to authorize someone else to act for us. We may be a Florida snowbird or otherwise unavailable, bills need to be paid, decisions may have to be made with regard to investments, a cheque may have to be endorsed, we may need a short-term loan, or we may need to retrieve a document in our safety deposit box. The question then arises: Is it a good idea to give a power of attorney to another person to do these things for us? After all, we are perfectly capable of doing these things for ourselves, it’s just that it might be inconvenient. To answer, we must understand the difference between the power of attorney and the mandate in case of Incapacity. We should also look at the standard power of attorney issued by the banks.

The Oxford English dictionary defines a power of attorney as the authority to act for another person in legal or financial matters. In other words, it is through the power of attorney that you give another person the authority to act for you. The Quebec Civil Code uses the term “mandate” and defines mandate as an agreement whereby Person A consents that Person B has the power to represent him in his dealings with a third party. The document that sets out the power that is given is referred to as the power of attorney. This document represents a sharing of power between two people. The person giving out the power does not lose that power, he is rather permitting someone else to exercise it as well as himself. The most familiar power of attorney is the one given out by the bank. It is through this document that one person gives another, often a spouse, child or other relative, the power to act on his behalf in his dealings with the bank. When you sign a power of attorney with the bank you are giving another person the power to sign and deposit cheques, borrow money, enter your safety deposit box and deal with your investments. It is therefore very important to choose someone you trust completely. It is also crucial to remember that just because you are permitting someone else to do these things for you does not mean you cannot do them yourself. Furthermore, the person to whom you give the power is meant to do these things for you and on your behalf. Giving the power to another person to act on your behalf does not mean that you have given up the power to act for yourself. You still retain your autonomy. As long as you have capacity no one has the right to use your money for their own purposes, to sell your home or other possessions, to change your living arrangements, to use your credit cards, or to make decisions regarding your health care without your consent.

For someone to act beyond the powers you have granted is abuse. Unfortunately we hear more and more stories of such abuse especially in cases involving seniors. The abusers are people trusted by the person granting the power of attorney; the person granting the power of attorney is being betrayed by those he trusts. There are too many cases coming to our attention for this problem to be ignored. We have the example of the man whose wife died. He was illiterate and it was she who had always managed the household and done the banking. After her death, the husband had difficulty with administrative tasks.

A female friend suggested he come and live with her and give her a power of attorney to access his bank account. This he did willingly. She used his debit card and prepared cheques for him to sign. She used some of his money for their joint needs and much of his money for her own. It wasn’t until he was advised by the bank that his account was overdrawn that he became aware of what had been happening. He sued and won judgment against her in excess of $75,000.

Remember that the fact you may have had a heart attack or stroke, or broken a hip or had a knee replacement, or have a chronic illness does not deprive you of your basic right to make decisions for yourself. If you do need someone to act on your behalf give them a power of attorney to do so but limit it. You may need someone to have access to your bank account to pay bills but not to take out large sums for their own purposes. You may need someone to take care of your house while you are away, but not to sell it or mortgage it. The bank should alter their power of attorney to suit your specific needs. All you need do is ask. There may come a time when you are no longer capable of managing your affairs or making important decisions and to protect yourself in case of such eventuality you should have a Mandate in Case of Incapacity. That mandate will not have limits but it also will not take effect until you can no longer act for yourself.

So long as you retain capacity, you owe it to yourself to keep an eye on your affairs and never be afraid to make your own decisions. You have the right to revoke any power of attorney you have given at any time and if you see that it is being abused you should cancel it immediately.

Unravel the mysteries of power of attorney, mandates and living wills

Joyce Blond Frank B.A., B.C.L., LL.M.

July 2011

As the summer holidays approach, I thought it might be a good time to answer some of the questions I am frequently asked.

What is the difference between a mandate and a power of attorney? The power of attorney is a document in which you give permission to another person to act for you even though you have the capacity to make your own decisions and act yourself. The mandate in the event of incapacity is a document in which you permit someone other than yourself, called a mandatary, to administer your affairs and make personal decisions for you when you are no longer capable of doing so. This is usually prepared by a lawyer or a notary.

Why do I need a mandate if I have a will? They serve different purposes. The mandate permits others to act for you while you are still alive. The will takes effect after death and contains your instructions as to how you want your estate to be handled and distributed after you are gone.

I have a power of attorney from the bank so why do I need a mandate? The bank’s power of attorney only covers that bank’s transactions and will not apply to other banks or financial institutions, such as trust or investment companies. You would need a separate power of attorney for each of them or one general power of attorney which, in Quebec, is referred to as a “mandate.”

When does my power of attorney or mandate take effect? The power of attorney takes effect as soon as you sign it. This means that either you or the person you have designated can do the banking or change your investments.

The “mandate in the event of incapacity” will only take effect after it has been established to the satisfaction of a court of law that you are incapable of taking care of your own affairs. This legal process is called “homologation”. As well as containing provisions with regard to the administration of your assets, it can and usually does, also contain provisions with regard to such personal needs as health care, assisted living and end-of-life issues.

What is a living will? It is an informal document containing instructions regarding your health and end-of-life care. Such instructions should be given to your physician and put into your medical and hospital records. They can be helpful to your doctors, caretakers, family and friends should it become necessary to make decisions on your behalf, especially with regard to the use of extraordinary measures.

Who is the public curator? The office of the public curator is a government body responsible for administering the property and affairs of those who cannot do so for themselves and have failed to designate someone to do it for them. In other words, for those who have not made a mandate in case of incapacity. It also oversees the work done by private curators and administers the estates of people who die without leaving a will and without any known heirs.

What is a curator; what is a mandatary? A curator is named where there is incapacity and no mandatary has been designated. In such cases a person can be declared in need of protection and a relative or friend will be named curator. This is done by calling a meeting of relatives and/or friends who then suggest to the court the person to be chosen. Where there is no one to act, it is the office of the public curator that takes over. The mandatary you name in your mandate in the event of incapacity is your choice rather than the choice of your relatives and/or friends.

How do I make a will? Can I do it myself? To be valid, a will must be drawn up in one of three forms. The notarial will is drafted by a notary. It takes effect upon death and does not need to be probated (approved by the court). The will in the presence of witnesses is signed by the testator in the presence of two witnesses. It can be typed or written by a third party. This is the form used by lawyers and it must be probated after the testator’s death in order to take effect. The holograph will must be both handwritten and signed by the testator and must also be probated after death.

How do I make a mandate in the event of incapacity? This document must be drafted in a specific form. It is therefore advisable that it be prepared by a lawyer or notary. It will only take effect after being homologated (approved) by the court. Before granting this approval the court will require the reports of a physician and psycho-social worker as proof that you no longer have the capacity to make decisions for yourself. The content of your mandate in the event of incapacity and your choice of mandatary are very important and should be given much thought.

I hope the above answers some of your questions.

Love with marriage becoming as outdated as a horse and carriage

Joyce Blond Frank B.A., B.C.L., LL.M.

June 2011

Shakespeare said: “If music be the food of love, play on.” Mendelssohn and Wagner both wrote beautiful wedding marches. A more recent song says: “Love and marriage go together like a horse and carriage.”

There are few formalities attached to the process of getting married; it’s easy to do. Yet in Quebec, more than 30 per cent of couples live together without going through the marriage ceremony. What difference does it make in their lives?

There are certain rights and duties that come with marriage. These relate to the home, financial and moral support, the care and upbringing of children, household expenses, the ownership, use and sharing of property and rights of succession. Then, of course, the consequences of a potential breakdown of the relationship and ensuing legal separation or divorce can be complex and hiring lawyers, accountants and psychologists to help in the process very expensive.

Plato envisaged a republic in which men and women would share equally in all things insofar as physical strength permitted. However, it was as recent as July 1, 1964, that married women in Quebec were granted judicial capacity. Until then, they were considered incapable of doing most things without the consent of their husband.

The man ran the household, administered the assets, made all decisions pertaining thereto and his wife swore obedience to him.

Very few women worked outside the home. He earned the family income and he paid for purchases that then belonged to him. The law did provide one protection for the married woman, namely community of property by which the wife would share in the ownership of assets should the marriage break down and the couple separate.

In spite of this protection, many women went to a notary prior to the wedding ceremony and signed a marriage contract making them separate as to property.

This permitted them to own and administer their own property but gave them no right to share in property accumulated during the marriage and held in the name of the husband. The result was that often when a marriage broke up the husband owned all the assets and the wife had nothing.

The 1970s brought many social and political changes to Quebec. More women worked outside the home, the Canada Divorce Act came into effect in 1968 providing married couples an exit door from the marriage. By 1980, the husband and wife were considered to be equal partners in the matrimonial relationship and the running of the household and expected to share equally in the decisions and responsibilities of the family.

We finally caught up to Plato!

The law provided for support (alimony) as well as for some compensation under certain circumstances where it could be proved that one of the parties (usually the wife) had increased the wealth of the other (usually the husband) to her (his) own detriment.

In most cases, the courts held that domestic work was not subject to compensation. The parent who stayed home and raised the children was doing the job expected and not entitled to compensation. As this in most cases was the wife, she could be left with nothing upon the breakup of the marriage. To help rectify this situation, in 1989 legislators introduced “family patrimony,” which gave both spouses shared rights in certain family property such as home(s), cars, furniture and registered funds.

In spite of this increase in protection, an increasing number are living together as a family without marriage. Individuals are free to choose how they want to live and where the choice is to live outside the protection of matrimonial law that choice must be respected.

There are cases where one or the other member of a couple living together as a family unit, with or without children, is left without any assets and without the right to claim support upon the breakup of the relationship. In a 2003 Quebec Court of Appeal judgment, it was held that it was important to validate the freedom of choice of the individual and, in the absence of applicable legislation or a contract between the parties regulating the economic aspects of the relationship, the court would not interfere.

In addition to the occasional granting of a compensatory payment, in some very limited number of cases the court has been willing to recognize the existence of a tacit partnership between the parties and order that assets be shared. Children are protected whether or not their parents are married. Those who do not enter into marriage form a large and ever increasing group which, although no longer outside the boundary of social acceptance, is still outside the realm of legal protection.

Often these couples refuse to consider the protection marriage would bring them.

They also do not want to think about setting out their respective rights and obligations and regulating economic matters between them in a pre-living-together contract although the courts have recognized such agreements.

Until the law is changed, as an attorney I urge them to manifest their love in a document that will protect them against all contingencies. And remember, you can live together forever without marriage, but your partner will not inherit any part of your estate unless you have a will.

Mothers and children shouldn’t expect if they don’t respect

Joyce Blond Frank B.A., B.C.L., LL.M.

May, 2011

When you were a child, your mother (and father) had a duty to act for you, fight for you, manage everything for you, keep you safe, support you, supervise and educate you.

She had authority over you. You had a duty to respect her. When the child reaches adulthood, what changes? What are her obligations toward you and you toward her? You still have an obligation to respect her and, if there is need, you may have an obligation to support her. She may have an obligation to contribute toward your support, as well. In either case, it is real need that will be considered rather than the standard of living toward which either of you may aspire. However, as an adult, your duty to respect your parents and their obligation to contribute toward your expenses may be intertwined!

Oscar Wilde said: “Children begin by loving their parents, after a time they judge them, rarely, if ever, do they forgive them.” Now, more than a century later, when we look at the case law, this quote seems to apply both ways.

Recently, a judge of the Superior Court of Quebec said a mother no longer needed to help support her 20-year-old son, a student with whom she had had no contact for more than six years. The judge took into account the son’s real needs rather than the standard of living to which he aspired and said that although it is true the mother had an obligation of support toward her son, he had a moral obligation toward her. By refusing to communicate with her, he had failed to exercise that obligation and she therefore had no obligation to contribute toward his needs.

In a similar case, a 19-year-old student left his mother’s house before graduation on the ground that she was too strict. He moved in with a relative. He refused to communicate with his mother and asked the courts to order her to pay support while he worked toward a diploma. The mother had sufficient revenue to contribute to her son’s income. However, the judge considered his behaviour toward her deplorable and in violation of his obligation to show her respect. Consequently, the amount she was ordered to give was minimal and would be annulled at such time as her son ceased pursuing his studies on a full-time basis.

In one case, a university student took the separation of her parents badly and unilaterally severed all relations with her father. When she claimed support from both parents, the judge held that, although her behaviour toward her father might have been understandable for a certain period of time following the separation, it no longer was. Her father had made an effort to reconcile and had always exercised his financial obligations. Her attitude toward him bordered on ingratitude and given the circumstances, the judge refused her request to obtain support from him.

A child’s right to parental support can continue into adulthood. His duty of respect lasts a lifetime and the courts have used ingratitude as a reason to refuse or reduce the support it orders the parent to pay. An adult child may also have a financial obligation toward his parent. There are cases where the courts have ordered a child to pay support to a parent or to house and feed the parent in fulfillment of that obligation. In one such instance, a mother had wasted a lump sum granted at the time of her divorce. The judge held she was capable of working but could not be left destitute and ordered her children to support her for a limited time so that she could find a job.

In another case, the children used the behaviour of a parent toward them as grounds for refusing to provide support. The judge refused to override the obligation as there was no provision in the law on which he could base himself to accept such a defense. Failure of the parent to properly care for and provide a healthy home for the child was not considered a justifiable reason for refusing the support. Unworthiness was not a defense to a request for support by a parent to a child. In another case, however, support was refused where the parent had been violent and made life a living hell for the child.

Our law creates an obligation of support between parents and children and between spouses; it does not provide for mutual support between siblings or between other members of an extended family. The legal system does not concern itself with love, but we know that parents and children often support each other, not because the law requires them to, but out of love.

And that’s what Mother’s Day is all about—an expression of love for one’s mother.

Who’s responsible for the kids?

Joyce Blond Frank

April, 2011

Spring is just around the corner and with the nice weather, children will be playing outside more. What happens when they hurt each other playing sports? Just how responsible are we for the acts of our minor children?

The law presumes we are responsible for the harm our children cause to someone else and this presumption can only be refuted if we can establish that we have carried out our obligation to supervise and educate them properly.

This liability applies to those who may be entrusted with and paid for the supervision or education of our children. Examples would be schoolteachers, daycare employees, camp counselors, sports coaches, and park monitors. Those who care for a child without payment will not be held responsible unless they themselves have committed an act of fault.

To illustrate, a 13-year-old girl was injured playing hockey during a gym class and her parents sued the school board. The court did not hold the defendant responsible because the rules had been explained to the students prior to the start of the game, several games had been played over a reasonable time period, the players were supervised by an experienced instructor, they wore protective glasses and their equipment was adequate and conformed to regulations. The accident was unforeseeable and involuntary and the board had done everything it could to prevent such an occurrence.

On the other hand, when a 15-year-old boy incurred a body-contact injury during a high school sporting event, the court held that the school had an obligation to keep its students safe by explaining the risks involved, by supervision and by providing secure equipment and a safe environment in which to play. The court found there had been insufficient instruction given, there was no close surveillance, and the protective equipment was inadequate. Because the teachers had failed to rebut the presumption of responsibility for the acts of the minor students under their care, the school was held liable.

When a 12-year-old boy lost most of the function of an eye as a result of a schoolyard brawl with another 12-year-old boy, his parents sued the parents of the other boy, their insurance company and the school.

The judge held that both boys were at fault and had contributed equally to the injury. He was convinced that the parents had properly educated their son and that his action was a spontaneous reaction to the actions of the other boy. The school had rebutted the presumption of inadequate supervision as the event occurred quickly, there was nothing about the boys that could have led anyone to suspect that anything like this could happen and even had there been additional supervision, the incident could probably not have been prevented. Consequently only the boys were held accountable and only 50 per cent of the damages were granted to the injured boy.

When, as part of a game, a father instructed his 7-year-old son to throw a stick that hit a 12-year-old girl in the eye, the court held the boy was too young to realize the danger but the father should have realized it. The father was held personally liable for the injuries and ordered to pay damages to the girl.

So with the nicer weather of spring upon us, when your children and grandchildren take out their balls and bats, be sure they know what they can and should not do. And when you wind up and pitch that first baseball of the season, be careful!

You’re responsible if Fido’s bite is worse than his bark

Joyce Blond Frank B.A., B.C.L., LL.M.

March, 2011

Spring has almost arrived and warmer weather will soon follow. We will remove our heavy coats and boots and the smell of spring will lure us outside.

We will walk our dogs more; we may even let it outside on its own. Some may decide to acquire a pet. We all know of dogs rescued from terrible conditions and can’t help asking ourselves how such situations can be permitted to exist. We want to help where society in general seems to have failed.

Our laws do not adequately protect our furry four-legged friends. But then, the law treats animals as “things.” For example, the Civil Code of Quebec refers to animals in the wild as “things without an owner.”

In one case a judge, referred to a domestic animal as moveable property that continues to belong to its owner even when lost.

When an SPCA sold two found pet dogs without attempting to find their owner and then refused to provide the owner with the name of the person who had purchased them, the judge held that the SPCA had deprived the owner of “peaceful possession of his property.”

The judgment in this case was favourable to the owner but the words used by the judge illustrate a mindset that influences how domestic animals are treated. A thing does not have rights, nor does it have obligations. But when that “thing” is an animal, its owner will suffer the consequences when the “thing” it owns or controls causes damage.

The Civil Code provides that the owner of an animal must pay for injuries or damages the animal causes even where that animal has strayed or escaped. A third person who has custody or control of the animal will also be held liable.

There is a legal presumption of liability against both the owner and third person and release from such liability can only occur if the injury or damage is the result of an unforeseeable and irresistible event.

Where a domestic animal injures someone, the courts will also look at the behaviour of the victim. When a child was bitten by a dog in the yard of a neighbour who was watching the dog for the day for a friend who had found it and was returning it to the SPCA, the court held the neighbour did not own or control the dog but was acting as a good Samaritan and helping out for the day.

The judge felt that if fault had to be attributed, it was to the parents who had left the child unsupervised with an unknown animal.

Similarly, a 14-year-old was held to be partially responsible for her injuries when bitten by a 6-month-old puppy.

Because the dog had caused the injuries, the owner’s liability was maintained, but the injured girl had to bear 50 per cent of the responsibility, as the judge felt she should have known that the reaction of a dog you don’t know is unforeseeable and she was reckless in approaching it without sufficient caution.

When the owner or guardian of an animal that has caused damage or injury is not able to rebut the legal presumption of liability against him, he will be ordered to pay damages.

When a horse kicked the person attempting to lead it into a pasture and the victim was doing everything the right way, the owner was held liable.

When a known friendly dog bit a child and his mother while under the control of a third person, the event was held to be unforeseeable and both the owner and the third party were jointly ordered to pay damages. When a horse escaped from the barn where it was boarded and caused damage to a vehicle, judgment was rendered against both the owner of the horse and the owner of the barn.

When the arm of a visitor to an animal park was injured by an animal he had fed with food sold to him by the park for that purpose, as he rested his arm on the window ledge of his car, the court held that the park could not be exonerated from its responsibility on the ground that the man accepted the risk as this is not one of the grounds for exoneration from liability set out by the Civil Code. So enjoy your pet because we all know it is much more than just a “thing,” but remember that your pet is an animal capable of causing injury and damage and that it is you who will bear the responsibility.

Protect the ones you love within the Civil Code of Quebec

Joyce Blond Frank B.A., B.C.L., LL.M.

February 2011

The month of February brings Valentine’s Day, the day we show we care with gifts of cards, flowers and chocolates.

Another way to care is by ensuring that our loved ones are protected now and in the future. I regularly emphasize the necessity of making a will. Where there is no will and a person passes away, the Civil Code of Quebec sets out who are the legal heirs. These are the spouse, children, parents, siblings and more distant relatives.

The Civil Code also stipulates what portion of the estate each of these groups will inherit. Remember that the laws of Quebec attempt to protect matrimonial assets with the creation of a family patrimony upon marriage, and that the Civil Code does not recognize the common-law spouse.

The family patrimony is created by law upon marriage and consists of family residences and their contents, registered funds (RRSPs, RRIFs), pensions, and family vehicles acquired during the marriage no matter whose name those assets are in. Upon the death of one of the spouses, the family patrimony is dissolved and the laws pertaining to its division take effect.

With this background in mind, let me describe a few of the problems that can arise when there is no will.

The married relationship. If you believe your spouse would automatically inherit everything you leave behind if you do not have a will, you are wrong. The surviving spouse would benefit from the division of the family patrimony that would take place. One equal share would become the property of the surviving spouse and the other share would be added to the other assets forming the estate of the deceased.

The surviving spouse would not inherit the entire estate of the deceased but would have to share it with the children at a ratio of two-thirds for the children and one third for the spouse. If there are no children, the spouse would have to share with the parents of the deceased or, if they are no longer living, with the deceased’s siblings in a ratio of two-thirds for the spouse, one-third for the parents or siblings.

Therefore, the surviving spouse would acquire her share of the assets of the family patrimony as well as a portion of the remaining assets forming part of the estate of the deceased. It is only when there are no children, parents or siblings that the entire share of the estate will devolve by law to the spouse.

The common-law relationship. If you have been living common law and die without leaving a will, no family patrimony has been created from which your spouse can benefit and he or she will not inherit at all. The assets in your estate will go to your legal heirs, namely, to your children, or if none, to your parents, siblings or more distant relatives.

With the above scenarios, where there is no will, a surviving spouse can find himself co-owning the family home with his children or distant relatives. He may not be able to afford to continue supporting the house, as he has not inherited the entire estate. His co-owners may want to sell the house to acquire their share of the sale price. If it was a common-law relationship and the house is not registered in the names of both spouses, the surviving spouse may not own any share in the home at all. Time is not relevant and this unfortunate situation will exist no matter how long the parties have lived together or have owned the house.

Unless there is a provision in a will, a person’s RRIF or RRSP will not automatically transfer to a spouse. It will collapse and about half the value will go to the government in tax. Only what is left will fall into the estate of the deceased and only a percentage of that will be inherited by the spouse. But, if there has been no marriage and there is no will, the common-law spouse will not inherit any part of it.

The laws pertaining to Quebec and Canada pension plans as well as most private plans recognize common-law relationships. However, the Civil Code does not; nor does it provide for one spouse to inherit the entirety of the other spouse’s estate after death. So protect whatever relationship you have. Your will may prove to be the best Valentine’s Day gift of all.

Save yourself a trip to court and be grateful for the gift you get

Joyce Blond Frank B.A., B.C.L., LL.M.

December, 2010

Under the law of Quebec, a gift is considered a contract under which the donor, or giver, transfers the ownership of property to someone else without getting anything in return.

A promise to give something is not a gift; the actual transfer of ownership must take place. If the promise is not fulfilled, the designated recipient of the gift (the donee) will have the right to claim damages. Where the transfer of ownership is conditional upon the death of the donor, it is called a gift mortis causa. Otherwise it is called a gift inter vivos. A gift mortis causa can only be made by a will or a marriage or civil union contract. Such a gift specified by any other means would not be binding.

Gifts inter vivos must be made by notarial deed unless possession of the property is actually transferred to the person receiving it.

Gifts mortis causa can be revoked at any time by the donor. A gift inter vivos can only be revoked in the case of ingratitude – where the donee “has behaved in a seriously reprehensible manner toward the donor.” This leaves it to the discretion of the judge who, when assessing the behaviour of the donee, will look at the nature of the gift, at the gender, age and means of the people involved and at the circumstances.

In one case, there existed a friendship between a young man and a much older woman. The woman gave the man money to purchase a car and condo. When she exhibited romantic behaviour toward him, he explained that there could never be a love relationship between them. The woman became jealous and they argued. The man, angry and frustrated, reacted inappropriately and forced the woman to kiss him.

The relationship deteriorated and the woman claimed back the $159,000 she had given him for the car and condo.

The trial judge considered the kiss an act of sexual aggression and granted the action. The court of appeal held that the order revoking a gift is of a penal nature. Even where a gift is given as the result of affection, the loss of that affection does not constitute ingratitude. For ingratitude to exist, there must be ill-will or malevolence. A spontaneous act resulting from anger will not be sufficient for the courts to revoke a gift. The courts will also take into account any provocation emanating from the donor.

Considering the relationship between the parties and the circumstances and impulsiveness of the kiss, the act of the young man did not constitute ingratitude, the judgment was reversed and the action of the woman to reclaim her gifts dismissed.

In another case, children sued their father’s wife to get back an amount given by the father to her a few months before his death. The wife and father had separated, but had reconciled when she was pregnant with a child from another man. The children claimed the return of the amount on the ground of ingratitude: They alleged offhand behaviour from the wife at the funeral home and her threat to throw their father’s ashes into the toilet. The judge, stating that ingratitude could only be established with seriously reprehensible behaviour, held that her actions at the funeral home, although not acceptable, were not directed at her late husband and did not constitute ingratitude. Also, the threat of disposing of the ashes arose from spontaneous anger resulting from learning of a change in the will and being told that her husband no longer loved her.

Her actions could be explained by these special circumstances.

In a recent case, the Quebec Court of Appeal applied the concept of ingratitude in deciding that the actions of a father were seriously reprehensible. He had used his deceased daughter’s money for his own purposes while administering her assets and had falsified reports to the office of the Public Curator to conceal what he had done. The errors found in his administration were not just the result of a slip-up, but constituted a fraudulent breach of trust that he had deliberately attempted to hide in his reports. The Court of Appeal agreed with the Superior Court that he had acted in a seriously reprehensible manner by deliberately mismanaging his daughter’s funds. He was ordered to reimburse her estate.

It is the judge alone who has the power to appreciate the facts and decide whether those facts constitute ingratitude.

If you are ever tempted to go to court to revoke a gift on the ground of ingratitude, it would be wise to remember that your idea of what constitutes ingratitude might differ from that of the court. And if you are the recipient of someone else’s generosity, try to remain grateful.

When something goes wrong at the hospital, who carries the blame?

Joyce Blond Frank B.A., B.C.L., LL.M.

November, 2010

No matter how hard we try, how much we control our diet, or how much we exercise, there are some things we cannot prevent.

Let’s consider the following: How would you react if you had your tubes tied and found yourself pregnant with your sixth child? Or if you had bypass surgery and then suffered severely for more than a year before anyone removed a left over staple? Or if you had to undergo exploratory surgery because the radiologist misread your X-ray?

Presumably, you would ask for compensation and if that was not forthcoming, you would apply to the courts for a judgment ordering payment for the damages and suffering you had undergone. And you would expect the court to be sympathetic toward you and render judgment in your favour. This is not as simple as it might seem. You would probably get the sympathy of the court, but you might not get the anticipated financial compensation.

The physician must be prudent and diligent and act as a colleague with the same expertise and of reasonable competence might have under the same circumstances The law pertaining to professional liability puts the burden of proof on you, the plaintiff, to prove that the professional you are suing has committed an act of fault or negligence that has caused you damage that can be evaluated in dollars.

This is an especially heavy burden in cases of medical responsibility because the act of fault or negligence must be such that it would not have been made by another practitioner acting within the normal acceptable standards established by the profession. The physician is expected to explain the risks of the procedure to his patient, but he is not usually expected to guarantee results.

He is expected to act in accordance with the highest medical standards and within the rules set down by his profession. If he does all of this and makes a mistake, he will not necessarily be ordered by the court to pay for the damages or suffering you have incurred.

When the woman above discovered she was pregnant, she sued the surgeon. The different methods of tubal ligation had been explained to her and she had given her consent to a technique, knowing it was 97 per cent effective. Three months after the surgery, an X-ray confirmed her tubes were blocked, although the right side had moved slightly. The patient was advised that the operation had been successful but was not told about the displacement.

About a month later, she experienced morning sickness and an echogram confirmed her worst fears. She decided not to have an abortion. The court held that there was no expertise proof that the operation had not been performed properly in conformity with accepted medical practice and consequently the court was unable to conclude that there was any fault on the part of the surgeon.

There was also no proof of any connection between the displacement of the tubal implant and the inefficacy of the procedure. The woman lost her case.

Now consider the man who had triple bypass surgery twice in one day, the second intervention rendered necessary because of hemorrhaging following the first one. This required removal of the staples used to close the thoracic cavity following the first surgery and replacing them. Following these operations, the patient experienced severe pain at the chest and lungs as well as some bleeding. It felt as if his thoracic cage was squeezing his lungs.

The surgeon who had performed the first operation removed some of the staples, but the pain and bleeding continued and several months later more metal was removed. About 14 months later, still in pain and bleeding, the patient returned to the first surgeon and was told everything was healing normally.

Shortly afterward, having consulted his family doctor and taken an X-ray, he learned that a staple still remained in his body. Upon being informed, the original surgeon refused to take responsibility and refused to remove the final piece of metal. This was done by another surgeon at the day clinic. Eighteen months after the original surgery, the patient was able to wear a shirt and sleep in his own bed. The problems with his lungs continued, but the surgeon said he could no longer help him. The patient remained unable to work. Legal action was taken against all the physicians and surgeons who had treated him. They presented the testimony of an expert to the effect that proper procedures had been used. The patient did not have an expert witness. The court held that it did not have the medical knowledge permitting it to substitute its own opinion for that of an expert. In cases of medical liability, the obligation of the physician is one of means and not of result. All surgical interventions have risks and a surgeon cannot guarantee results. In the absence of medical expertise proof, the court was not able to conclude that the physicians had not followed acceptable methods and procedures. By not presenting an expert witness, the patient had failed to fulfill his burden of proof and his claim was rejected.

In another situation where a patient underwent unnecessary exploratory surgery following the interpretation of her X-rays by a radiologist, the court held that to determine whether a professional has committed an act of fault, one must ask whether another reasonably prudent and diligent professional would have acted the same way under the same set of circumstances.

In order to assess this, the court must refer to experts and cannot substitute its own opinion for theirs. In this case, the radiologist may have misinterpreted the X-ray but his work was carefully done; he acted prudently and diligently, and his conclusions were reasonable under the circumstances. He had behaved as would have any other reasonably prudent and diligent professional and reached a conclusion consistent with good professional practice.

The patient's claim was dismissed.

The physician must be prudent and diligent and act as a colleague with the same expertise and of reasonable competence another might have under the same circumstances.

The burden is on the plaintiff who institutes the legal action. Sometimes the facts are such that it is difficult to envisage any conclusion other than responsibility. Once a judge accepts that the facts give rise to a situation where liability seems self-evident, it is up to the physician to convince him that the damage is not his fault.

Where in the normal course of affairs something happens that should not have, causing damage to a patient, it is up to the physician to convince the judge he was not negligent. He must show that he acted in accordance with the generally accepted standards of the profession.

To prove that he did not do so you must have the testimony of an expert. Where the patient does not present expert testimony, the court will offer sympathy but the rules of law and procedure will prevail and the patient’s claim will be dismissed.

Make obligations clear in delayed-sale transactions

Joyce Blond Frank B.A., B.C.L., LL.M.

October, 2010

Sometimes an arrangement is made to sell a property at a future time while permitting the prospective purchaser to live there and pay rent during the intervening period. There also may be other conditions to be fulfilled during that period.

We know that “sale” is defined as a contract by which a seller transfers ownership of a property to a buyer for a price the latter promises to pay. The principal obligation of the seller is to put the buyer in possession of the property; the principal obligation of the buyer is to pay the purchase price.

When either fails to carry out his obligation, the contract is no longer considered to be valid. Or is it? What happens when obligations undertaken during the intervening period are not carried out and one or the other of the parties still wants the sale to go through?

Mr. A signed a contract with Mr. B offering to purchase Mr. B’s house at the end of one year for a set price. Meanwhile, Mr. B would live in the house and a monthly rental as well as all expenses regarding the house would be calculated and paid at the time of the transfer of ownership of the house, to take place a year later. The seller would gather documentary evidence of the household expenses and provide them to the purchaser’s notary.

When the year was up, the seller still had not provided the required documents and because the buyer did not know how much he had to pay, he could not arrange the necessary financing. Sixteen months from the agreed date of purchase went by before the seller provided the buyer with the necessary information. The buyer was only then able to arrange for financing. At this point, the seller no longer wished to sell. He said that the agreement had been broken, that he was no longer prepared to turn over ownership of the property to the buyer who owed him 28 months worth of rent and household expenses. The buyer went to court to force the sale.

The court held that as long as the buyer was ready to pay the sale price as well as the other amounts that had been agreed upon, the seller could not invoke the delay because he himself had not fulfilled his obligations by failing to provide the buyer with the documents required for establishing the expenses within the allotted time delay.

The judgment of the court was to suspend the transfer of ownership for 30 days, during which time the buyer was to provide all amounts owing, namely, the sale price, rent and expenses, failing which the seller would remain owner of the pro- perty. If the buyer paid, he would become owner.

In another case where the interim obligation of the future buyer was to pay rent, the rent was paid but not the interest owing on delayed rental payments. Again, the court gave 30 days for the interest to be paid, at which time the sale would go through. Both cases followed an earlier Court of Appeal judgment in which the judges based themselves on principles of equity, which hold that those who come before the court to enforce their rights must act in good faith and exercise their legal rights in good faith.

This earlier judgment pertained specifically to those types of cases mentioned above, namely, where the sale of a property is to take place after a period of time during which either or both the seller and buyer undertake to perform specific obligations. As a result of this judgment, the courts will order a sale to go through even where those obligations have not been carried out to the letter.

A contract of sale creates obligations for both parties and one cannot force the other to carry out his without carrying out his own. However, contracts must also be subjected to a greater principle, which is that of honouring one’s word and carrying out one’s obligations in good faith. The rights of the parties are not to be thwarted by obsolete formalism, but the court must ensure that the parties to a binding offer perform their respective obligations.

The buyer must show his intent and capacity to pay the price when he applies to the court to force a sale and the seller must not be in bad faith by finding excuses to avoid transferring the property.

It is a matter of justice that purchasers in good faith should not be prevented by obsolete rules or verbal gymnastics from proceeding against sellers who refuse to proceed with a sale without valid reason. Neither should sellers who are in good faith be obliged to do battle with buyers who are unwilling or unable to pay.

To ensure that the buyer did pay and that the seller did not refuse unreasonably to proceed with the sale, the buyer was given 30 days to deposit all the money owing, failing which he would be presumed to have renounced his claim to the pro- perty.

Once the money was deposited, the judgment would avail as title to the property. This is the basis upon which the more recent judgments have been rendered.

In the case of sales that include a period of delay before the transfer of property, justice has prevailed and a contracting party cannot refuse to respect his obligations on a simple pretext or try to avoid the consequences of the sale contract by relying on unfounded excuses.

Joyce Blond Frank will attend an Information Day for Seniors sponsored by the Council on Aging, November 4, 10am to 4pm at 1444 Union Ave. across from The Bay. McGill metro.

It takes a village, and sometimes a courtroom, to raise good neighbours

Joyce Blond Frank B.A., B.C.L., LL.M.

September, 2010

Summer has come and gone. Hopefully you were able to enjoy your pool or read peacefully on the balcony.

But if the pool was covered with leaves from a neighbour’s tree, or the air rang with the sounds of his stereo, what could you do? One has a right to the peaceful enjoyment of one’s property, but one does not live in isolation and the right of ownership has its limitations.

No one has a right to deliberately disturb his neighbour but the law will not protect you from enduring normal neighbourhood annoyances that are not beyond the limit of tolerance owed by one neighbour to another. The problem is how do you define normal annoyances? What constitutes excessive inconvenience? What is reasonable behavior? How do you establish a limit of tolerance? What if your neighbour is a friendly, nice, quiet fellow who means you no harm but does in fact cause you great inconvenience because of his trees, or hedges, or fence? What if your neighbour finds your favourite shade tree to be a great inconvenience to him?

These are the kinds of problems our courts are often called upon to resolve. When faced with problems between neighbours, the Supreme Court of Canada has recognized that responsibility can exist without fault where the annoyance exceeds the limit of tolerance owed by one neighbour toward the other.

In other words, the responsibility is based not on the behavior of one toward the other but rather on the inconvenience endured by the other. In such cases one can be held liable in damages for abnormal or excessive inconvenience to one’s neighbour even where everything possible has been done to avoid causing the inconvenience.

The nature and location of the properties as well as local custom and existing provincial and municipal laws and regulations will be taken into consideration by the courts when assessing liability. It is the result of the act rather than its intention which counts.

It’s on the basis of this reasoning that the Supreme Court allowed a class action suit to proceed against a company whose operations created dust, noise and offensive odours even though the company had done everything it could to minimize these problems. More weight had to be given to the results of their operations rather than to the behaviour of the company, and the neighbouring property owners had suffered abnormal inconvenience exceeding the limits of toleration they should be expected to exercise.

It is to be noted that the industry was bordering a residential area.

Noise and dirt is a frequent problem where people live near an industrial establishment and in such cases the court will often look at municipal or provincial laws that limit or regulate what such establishments can or cannot do. In another case similar to the one described above, the industrial establishment had made every effort to limit the dirt and noise and there was no evidence that it was in violation of any legislation or regulation regarding the environment.

The court held that there was insufficient proof that the noise level constituted an abnormal or excessive inconvenience, but was considered normal given the area in which the plaintiff lived. The zoning in this case was an important element in the court’s decision.

In yet another case where excessive noise emanating from a dog kennel was the complaint, the court looked at the decibel level permitted by the Environmental Quality Act as well as at a resolution of the local municipal council, which recognized that exploitation of the kennel was causing a nuisance and set out the modifications the kennel owner would be obliged to undertake to avoid the closing of the kennel.

Trees and hedges are another frequent cause of tension between neighbours. Where fir trees 25 feet high were planted on the separation line between two properties, the neighbour went to court asking that they be cut on the grounds that they were not aesthetically pleasing, kept the sun out and shed pine needles all over his property, especially on the patio and in the pool. Even though it had already been established that no municipal bylaw had been violated, the judge ordered that the trees be cut on the grounds that the lack of sunlight and the vast quantity of pine needles constituted an abnormal inconvenience and the trees were too high for an urban environment.

However, in a similar case where a 50-year-old maple tree in a residential area had grown to 18 metres and was dropping leaves on the neighbour’s property, dirtying the patio, blocking the roof drain and swimming-pool filter, the court held that the property owner had a right to enjoy his property and plant trees and it would only be a minor inconvenience for the offended neighbour to cover his pool and put a filter on his drain pipes. Moreover, the court blamed him for having installed his pool in the vicinity of the tree.

The judge also felt the cost of cleaning the property was a normal maintenance expense. There are other cases in which similar complaints have been put before the courts and judges have decided that covering a pool, cleaning out roof drains, etc., was part of acceptable maintenance and that neighbours had to accept the normal inconveniences of proximity.

In another case, a judge assessed damages against both neighbours, each of whom had made a complaint against the other: against one for refusing to cut down annoying tree branches and against the other for having cut down some trees without the consent of his neighbour and without the permission of the court.

Neighbour fights can be complex and multifaceted. Many of these problems wind up before the courts, which will consider all aspects of each case including the behaviour of the parties, the necessity of maintaining a status quo, the extent and nature of the prejudice suffered and existing legislation and regulations.

Where a person takes matters into his own hands, such as cutting trees or hedges without permission, the damages awarded by the court can be substantial.

It is probably in everybody’s best interests to try to be a good neighbour and do whatever is necessary to minimize any inconvenience to someone else.

And always remember that no matter how troublesome the situation may be, if you want to avoid being held liable for damages, you cannot remove the source of the annoyance without the consent of your neighbour or the authorization of the court.