Law Times

Page 2 NOVeMBeR 2, 2015 • LaW TIMeS www.lawtimesnews.com When people get around to making a will, it often comes as a relief. "I've never had a client who didn't feel better after it was done, largely because it gives them peace of mind," says Atin. Atin can't say if there has been an uptick in the last 20 years or so in the proportion of people who have done their wills but he does note that the number of guardianship and ca- pacity cases has skyrocketed in that period. "Dementia makes for the hardest cases, all of which could have been avoided if the individ- ual had just prepared a power of attorney, which is a simple doc- ument," says Atin. Even individuals lacking the capacity to make a will may be competent to execute a power of attorney. "Making a will requires the capacity to exercise some ex- ecutive functions like know- ing what assets you have, who would normally benefit, and that you're signing a final distri- bution," says Atin. "That's a considerably higher standard than the capacity re- quired for a [power of attorney] or for something like getting married, which probably re- quires the least amount of ca- pacity." In other words, capacity is a sliding scale. "We tend to think of capacity as an on-off switch, but it's not," says Atin. "Someone may not be capa- ble of making all the decisions that need to be made, but that doesn't mean they can't make some of those decisions." However that may be, immi- nent changes to the rules gov- erning testamentary trusts give Make a Will month some added urgency. As of Jan. 1, 2016, graduated tax rates will no longer be avail- able for ongoing trusts. "Going forward, there won't be any tax benefit at all in set- ting up a testamentary trust," says Atin. At the same time, the responsibility for income tax will shift to the surviving spouse's estate rather than on the deceased spouse's estate. The change is likely to have the most significant effect on wills involving second mar- riages where spouses leave a life interest to the survivor with the remainder reverting to each of the respective spouses' children on the death of the surviving spouse. "Currently, if Bob dies and leaves a life interest to Carol, his estate would be liable for any capital gains on Bob's assets when Carol dies," says Atin. "Under the new rules, Carol's estate would have joint and sev- eral liability with Bob's estate." What makes the tax shift more meaningful is the lack of grandfathering for existing wills. "Everyone should take a look at this issue," says Atin. Otherwise, new regulations under Ontario's Courts of Jus- tice Act, the most significant of which relates to mediation in es- tate matters, will also come into effect in January. Currently, mediation in es- tate matters is mandatory only in Toronto, Ottawa, and Essex County. The new regulations give courts elsewhere in the province the power to direct mediation even when it's not mandatory. A new rule governing the conduct of mediation in estates matters generally will also be in place. LT NEWS for detainees to seek judicial review of the immigration division's decisions at the Federal Court but didn't provide for ha- beas corpus where the statutory scheme was deemed to be at least as comprehen- sive. Jackman, however, says that option was never a successful route for detainees who would remain in detention while the appeals went on. Before the appeal court, Jackman ar- gued habeas corpus should be available because the challenge to continued de- tention isn't to the immigration matters themselves but to the ongoing incarcera- tion beyond what can be justified for im- migration-related purposes. Jackman also argued the exception arising from Peiroo v. Minister of Employment and Immigration doesn't apply, which, as the court stated in its ruling, deals with the notion of a com- plete, comprehensive, and expert statutory scheme that provides for a review that's at least as broad as, and no less advanta- geous than, habeas corpus. Counsel for the respondents argued the Peiroo excep- tion does apply and suggested it removes all immigration matters from the scope of the courts' habeas corpus jurisdiction. The appeal court, however, found otherwise. "I conclude that Peiroo does not create a blanket exclusion for all im- migration matters, and further, that the exception does not apply in the circum- stances of the cases under appeal," wrote Justice Paul Rouleau in the Oct. 20 deci- sion in Chaudhary. "There are three critical differences between the [Immigration and Refugee Protection Act] process and habeas cor- pus that, taken together, make habeas cor- pus broader and more advantageous to the appellants when the issue is whether continued detentions have become illegal due to their length and the uncertainty of their continued duration," he added, cit- ing the question the court is to answer, the onus, and the review process. Rouleau also found the procedure wouldn't affect applicants' immigration status because habeas corpus would sim- ply determine whether the detentions, because of their length and uncertain duration, had become a violation of their rights under the Charter of Rights and Freedoms. Immigration lawyer Nikolay Chsherbinin says the decision paves the way for a more neutral assessment of the lawfulness of an immigration detainee's prolonged detention. "It is refreshing to see the Ontario Court of Appeal recognizing that the process of detention reviews under [the Immigration and Refugee Protection Act] is not as broad and is less advanta- geous than habeas corpus," he says. "The availability of habeas corpus relief to im- migration detainees serves as a much- needed bulwark against the immigration division's often bewildering decisions to continue detentions." Immigration lawyer Chantal Desloges says the decision brings about a "wider, broader, and more favourable scheme" for long-term detainees through the Su- perior Court and suggests it represents a major shift in the review process. "The immigration bar is really de- lighted with the ruling because basically it gives long-term detainees another op- tion for applying for relief," she says. According to Desloges, habeas corpus is a more favourable scheme for detain- ees looking to challenge the legality of a lengthy detention under the Charter as the onus is on the government to prove that continued incarceration is appropri- ate rather than placing the burden on the detainee to demonstrate that it's unfair. "At the end of the day, they said yes, habeas corpus is more permissive and it's more advantageous to the person who's detained," says Desloges. "Unless all you're trying to do is mount a collateral attack on an underlying im- migration decision, if you're truly just challenging the legality of the detention, then the provincial court would have just as much jurisdiction to handle that as the immigration scheme would." The ruling, she suggests, provides a better balance. "It's definitely going to be a big benefit for that small number of people who are subject to what is close to indefinite detention. It strikes a perfect balance between not opening the gate too wide but providing a reasonable alterna- tive for people who are trapped in this endless cycle of detention," says Desloges. Lawyer Robin Seligman agrees it was a "very significant" decision and that the Su- perior Court will be a more suitable venue for detainees to appeal their detentions. "Traditionally, these cases keep getting bumped back to the Federal Court and many times the remedy is not there," she says. "Once somebody has been refused [release from detention], it just keeps get- ting revisited by different board members and they just rely on the previous deci- sions, so it seems like wasted effort." The previous system, she says, put great onus on detainees to prove their cir- cumstances had changed since the previ- ous review and, in most cases, the longer the time served, the harder it was to win release. "In reality, that's how it works. It be- comes almost impossible to get people released. The only place for review was the Federal Court, and that is not neces- sarily a satisfactory remedy and it takes time and money. But the Court of Appeal of Ontario is very used to hearing deten- tion cases and has proper experience and expertise in that area." The Canada Border Services Agency declined to comment on the ruling last week. LT STAY CONNECTED TO YOUR LEGAL NETWORK 2015-16 Atlantic Legal Telephone Directory connects you to your legal community providing accurate and essential legal contact information in all four Canadian Atlantic Provinces. Compiled by the respected legal directories group at Thomson Reuters, you can rely on a directory that grows and expands with your legal community. Each year find new and updated names, mailing addresses, email addresses and phone numbers for lawyers and law offices. Also get quick, easy access to: % Law and Barristers' Societies % Courts of Appeal % Federal Court of Canada % Government of Canada departments % Judicial districts and judicial officials % Incorporated Municipalities % Land registration and information services % The Associations of Land Surveyors % Law Foundation % Provincial government departments % Boards and Commissions % Law Related Services, Institutions and Organizations % University law faculties ... and much more. New Edition 1FSGFDUCPVOEȕ+VOF ȕ- Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) Stay connected with the 2015-16 Atlantic Legal Telephone Directory. Order your copy today. Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation Untitled-3 1 2015-10-28 7:55 AM Appeal decision shifts onus to federal government Continued from page 1 Continued from page 1 Guardianship, capacity cases have skyrocketed

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