Law Times

Page 6 June 24, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth The winds of change S o the Ontario government has finally relented to some of the concerns of rural Ontarians when it comes to wind turbines. According to a June 12 directive to the Ontario Power Authority, Energy Minister Bob Chiarelli has mandated a new prioritization points system for smaller renewable-energy projects under the feed-in tariff program. The new system allocates points for prioritizing projects according to a number of criteria. For example, a project with at least a 15-per-cent equity interest by a municipality or public-sector entity gets three points. The same applies to ownership by aboriginal communities as well as projects in which local residents have a minimum 15-per-cent equity interest held by a co-operative. In addition, projects with a municipal council or aboriginal support resolution get two points. Proposals with no points won't get a contract, according to the new rules. The changes respond to long-standing complaints about the system the Ontario government set up when it implemented the Green Energy and Green Economy Act. While the province was hoping to respond to climate change and spur business activity by introducing generous tariffs for wind and solar energy, it met significant opposition from rural communities concerned about the health and noise effects from turbines as well as negative impacts on property values. As a result, rural voters virtually wiped the provincial Liberals from their ridings during the 2011 election. The government has now been seeking to fix that problem through the changes to the feed-in tariff program. Critics, for example, have long said that one of the keys to overcoming opposition to wind projects is to provide for local ownership so communities see some payback from hosting the imposing turbines. Shifting some of the focus away from larger conglomerates, then, through the new priority system is a good way of addressing the issue. Nevertheless, the government will still consider larger projects but will now do so under a competitive procurement process requiring consultations with local communities on the location of facilities rather than the feed-in tariff mechanism. The changes are positive but they're more likely a political solution rather than a legal one. Opposition from those closest to wind turbines will continue given the ongoing concerns about health effects and property values. Giving municipalities more say on the location of projects addresses those issues to some extent but doesn't resolve them fully. As a result, we'll likely continue to see legal battles, including the one in Wainfleet Wind Energy Inc. v. Township of Wainfleet noted on page 8 this week, over this issue. The changes, then, will probably blunt the overwhelming resistance in some communities but not eliminate it altogether. Still, given the need to develop green energy and the ongoing debate over health effects, that's probably as good as we can expect for the moment. — Glenn Kauth Caron shows complexities when family, estates law intersect A recent case provides a good reminder of the issues that can arise in matters that intermingle both family and estates law. The case, Caron v. Rowe, deals with the interplay of a will, a marriage contract, a marriage, and a waiver. According to the decision earlier this year, Paul Rowe made a will in May 2009. He left the entirety of his estate to his parents. He and Andrea Caron entered into a marriage contract in 2009 and married two days later. Rowe died two years after that. His marriage to Caron invalidated his will, which he didn't enter into "in contemplation of marriage." He died intestate. Caron, as his sole surviving spouse and beneficiary, then applied for an appointment as the estate trustee without a will. Her in-laws and sole beneficiaries under his will objected on the basis of the marriage contract that provided that the parties were separate when it came to property and, further, that Rowe's home was to remain his sole property forever. It would have been helpful, I think, to know some more details about the circumstances surrounding the timing of the will and the negotiations of the marriage Law Times the nature and consequences contract as well as other simiof it. lar matters. What we do know, Family Caron may have never however, from Superior Court Law contemplated an impact on Justice Gisele Miller's findings her property rights in the of fact, is that the only provievent of her husband's death sion in the marriage contract while they were still a cohabthat dealt with matters puriting couple. It's also worth suant to the Succession Law mentioning that unlike the Reform Act addressed child prior cases on this issue, Rowe support claims with respect to and Caron weren't separated Caron's children from a prior at the time of his death. relationship and nothing more. Marta After a review of the leadThe marriage contract didn't Siemiarczuk ing case law on point, Miller contain a specific release of claims pursuant to the Succession Law Re- held that while Caron had waived her form Act. Instead, it would appear that the rights with respect to property claims puronly releases incorporated into the mar- suant to the Family Law Act, she didn't do riage contract dealt with her Family Law so as a spouse pursuant to the Succession Law Reform Act. Therefore, Miller proAct claims upon marriage breakdown. The historical case law on this point ceeded to appoint her as the estate trustee was very clear that to release rights under without a will. As a result, she'll ultimately the Succession Law Reform Act, it's not receive the entirety of Rowe's estate. In my view, this decision is quite corenough to release all property claims in the context of the separation agreement or the rect at law and is one we should all keep at marriage or cohabitation agreement. In- the forefront as drafters of domestic constead, there must be clear and cogent lan- tracts and, often, wills for the same client. guage explicitly releasing the Succession The case is rightly a blunt reminder that Law Reform Act claims and evidence that we need to truly understand our clients' the person giving the release understood wishes when preparing estate plans and Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . . . . . . . . . . . Sandy Shutt ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com domestic agreements. Consequently, we need to take care to ensure those wishes are explicit. In doing so, we need to keep a few things in mind: Will the terms of the domestic contract apply if the spouse dies? Are there other specific terms that will apply if the spouse dies? Should the domestic contract apply at all in the event of death where, like in this case, there hadn't been a breakdown in the relationship? Is there a will? If not, tell the client to get a will done as soon as possible. You can perhaps even have clients do a holograph will first and then instruct them specifically to inform their estate planning lawyer of the domestic contract to ensure any future will accords with it. If you're preparing the cohabitation agreement or a marriage contract, make sure the client knows a marriage will make the existing will voidable and a new one will be necessary. And, most importantly, make the waivers and releases explicitly clear. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta. siemiarczuk@nelligan.ca. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com advertising Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt...... sandra.shutt@thomsonreuters.com

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