DOUBLE DIPPING/DOUBLE DIPPING DOES NOT MEAN PUTTING BOTH OF YOUR FEET INTO COLD WATER

Date: 01 Dec, 2014

Double dipping is a reference to a future revenue source being shared more than once with your former spouse.  The prime example of that is a future pension which is treated as property at the time of separation and is equalized as part of the property settlement.  Later once the pension is actually being received, should that same pension/asset, which has already been equalized, be available as an income stream which your ex-spouse can look to for support.

As an example, if you are an employee of Chrysler and had worked at Chrysler for some 10 years during the course of the marriage, when you separate, that future pension even though you have not received it by the time of separation, is an asset which is equalization.  Using the services of a fancy mathematician called an actuary (and now this is a service provided by the pension administrator) a family law lump sum value is obtained.  That value is taken into account when there is a property settlement. 

That pension can be easily worth in excess of $100,000.00 and in return for you keeping all of your pension, you may give up all of your interest in the matrimonial home to your ex-spouse.  10 years later, you retire and start to receive $2,000.00 per month under your Chrysler pension.  Your former spouse’s financial situation has gotten worse and now your total income, including a $2,000.00 per month Chrysler pension is $3,000.00 per month.  Your wife wants spousal support and she wants as part of that spousal support the court to assume that you are earning $3,000.00 per month, even though two thirds of that comes from a pension that has already been shared with your former spouse.  This is an example of double dipping. 

The leading case on this is the Supreme Court of Canada’s decision in Boston vs. Boston.  The court held that this is generally not to be allowed, but this is not an absolute prohibition.  In the recent Manitoba Court of Appeal decision of Senek vs. Senek, the husband applied to reduce the amount of support as he had retired.  His pension had already been equalized when the parties had separated.  Quoting other decisions, the court stated that “the challenge is to avoid double recovery when it is fair to do so, but this is not to say that in all cases double recovery will be eliminated because of some cases double recovery may be the only fair way to continue support.”  In the Senek case, the court was moved to permit double dipping because in the absence of the former husband’s ongoing support, the ex-wife’s income would have fallen so low that she would have been placed below the poverty level.  When there is a strong need for spousal support, the court will tip the scales in favour of the recipient’s needs.  

CAREFUL WHAT YOU AGREE TO IF YOU ARE TOO GENEROUS, YOU MAY NOT BE ABLE TO GET OUT OF THAT OBLIGATION

Date: 17 Nov, 2014

The Ontario Court of Appeal recently in the decision of Stevenson vs. Smit, upheld an agreement in which the husband had signed and in which he undertook to pay 50% of all of the children’s lifestyle expenses, such as camp and private school despite the fact that he had minimal income and was just in the midst of starting a new company.  When things did not go well for him, he attempted to convince the court that the amount of support should be reduced down to something in accordance with the Guidelines, which would have caused a significant reduction in the child support that he was paying.

Despite his best efforts, the Ontario Court of Appeal rejected his attempt.  What sabotaged the husband’s argument was a finding by the court that there had been no material change of circumstances.  When he had agreed to this significant financial obligation, he had no income and had agreed that he would fund this out of his capital.  Nothing had changed in the intervening years and the court, while it is willing to set aside a spousal support arrangement that is less than the Guidelines, was far less willing to do so from the other side of the room.  If this is the deal you are going to make, beware as here the court would not allow the husband to avoid the responsibilities that he had undertaken.

Careful what you promise with your heart.  Your wallet may fail you and the courts may not help.

CAN MY CHILDREN SPEAK TO THE JUDGE

Date: 29 Oct, 2014

30 years ago, it was not uncommon for a Judge to ask to speak to the children directly alone in his office.  We are of course speaking in the context of an access or custodial fight.

This went out of favour and was replaced with the children having either independent lawyers representing them (rare and expensive) or a Government Agency called the Office of Children’s Lawyer (“OCL”).  The OCL may appoint either a social worker or a lawyer to represent their views.  This insulates the children from the judicial process.  Recently, the trend has reversed and some judges are indeed asking for an opportunity to speak to the children.  In a recent decision by the highly experienced Justice Perkins of the Ontario Superior Court of Justice, he spoke to the 15 and 13 year old children in his office only in the presence of a lawyer from the Office of the Children’s Lawyer.  The issue at hand was whether or not the mother could move with the children and the judge was pleased with the opportunity he had to speak with the children directly and the information that he gleaned.

This is not the most common of outcomes, however in the appropriate case, this is a step that can be explored.  Justice Perkins interviewed the children in the presence of their lawyer and while the meeting was recorded, the children were told that their views would be kept confidential unless they authorized the judge to release the information to the parents.  The judge stressed to the children that they were not the decision makers, but that the responsibility to determine the children’s best interests rested in the hands of the judge.  Another discretionary step.

The Client’s Best Interest: A Lawyer’s Obligation to their Client

Date: 04 Jul, 2014

Thumbnail-LogoLawyers have an obligation to provide advice that is in the best interests of their client. In providing advice, a lawyer must bring reasonable care, skill and knowledge to the performance of the professional services they undertake. Their conduct must meet the standard of care of a reasonable lawyer viewed in light of the time constraints, the nature of the client’s instructions and the client’s experience and sophistication. The standard is fairly high and lawyers, along with the various law societies across Canada, strive to maintain that. However, a lawyer can only advise their client on their options, they cannot force them to do anything. Our job is to present you with options, advise you about the strengths and weakness of each option, and then to follow through on your instructions.

Your lawyer is not an insurance police if you ignore their advice. This reality is highlighted by the recent Superior Court of Justice case of Marcus v Cochrane[i].  In that case, the lawyer, Ms. Cochrane, was acting for Ms. Marcus during her divorce. Ms. Marcus had already negotiated a separation agreement with her husband and she was seeking independent legal advice with Ms. Cochrane before finalizing the agreement. Ms. Cochrane advised Ms. Marcus that it was not in her best interest to agree to a final separation agreement without reviewing financial disclosure from her husband. Ms. Cochrane advised her client that it would be best to sign a partial agreement. Nevertheless, Ms. Marcus wanted to sign the final separation agreement, despite her lawyer’s advise against that.  Some time later, Ms. Marcus decided that the final agreement was not actually fair. She tried to sue her former lawyer for failing to stop her from agreeing to the final separation agreement. The court found that it was Ms. Marcus who chose not to follow the advice of her lawyer, Ms. Cochrane.  A lawyer can only advise about the risks and benefits involved with all the options available to their client. They cannot force the client to pursue the course of action they feel is best. Consequently, Ms. Marcus lost the claim against her former lawyer for failing to convince her to only sign a partial separation agreement.

Furthermore, Ms. Marcus had to pay a full indemnity costs award to her former lawyer. This is a rare order from the court only done when there are clear grounds to force one party to cover the other party’s entire legal costs. In this case, the court found that Ms. Marcus knew or ought to have known that her claim against her lawyer could not succeed. The evidence was overwhelmingly against her, yet she persisted in taking her matter to trial. Therefore, she is responsible for all of Ms. Cochrane’s costs associated with this claim. This is a warning to individuals who have second thoughts and want to blame their lawyer for their bad decisions.

The role of a lawyer is to provide their client with the best possible advice and to explain the risks and advantages associated with each and every available course of action. At Dale Streiman Law LLP, we rely upon the considerable expertise that our lawyers have gained over decades of practicing family law. Our job is to know and advise you on the best possible course of action given your specific case. Our role is not to force you into a courtroom or to settle for less than you deserve. We tailor our advice to your unique needs with special consideration of the financial, emotion and time costs that are present in many family law proceedings. If you’re in the midst of a divorce or a custody battle and require expert legal advice, please visit our website at www.dsklaw.com or book an appointment with one of our lawyers.


[i] Marcus v Cochrane, 2012 ONSC 146 available at http://www.canlii.org/en/on/onsc/doc/2012/2012onsc146/2012onsc146.html for the initial lawsuit and 2012 ONSC 2331 available at http://www.canlii.org/en/on/onsc/doc/2012/2012onsc2331/2012onsc2331.html for the full indemnity cost award

Can an Estate Collect on a Life Insurance Policy if the Named Beneficiary is Disqualified? Or Can a Murderer collect his wife’s life insurance?

Date: 04 Jul, 2014

A recent case from the Ontario Superior Court of Justice raises some important questions about the interplay between estates law and insurance law. In Papasotiriou v Manufacturer’s Insurance Co[i], the named beneficiary of a life insurance policy could be disqualified on public policy grounds because he was the one responsible for the death of the owner of the policy. There is a long line of cases from the Supreme Court and Ontario Court of Appeal that clearly states that a person cannot profit from their crime. This means that the murderer cannot collect on the life insurance policy. In this case the named beneficiary was arrested for the murder but not yet convicted. The estate took the position that, if he is convicted and subsequently disqualified, the life insurance policy should be paid out to the estate.

Master Dash heard the case which involved a number of distinct legal issues. Firstly, the relatives of the deceased wanted to intervene in the alleged murder’s action against the insurance company. The accused murderer was trying to collect before the final verdict in the criminal case was announced and the family want to stop that from happening. Secondly, Master Dash granted the insurance company’s request to have the money in the policy paid into the court. This allowed the insurance company to move on from this policy and the court to stop proceedings until after the criminal case finishes. Finally, Master Dash made a distinction in insurance policies taken out by a beneficiary and those taken out by the deceased. If the ‘owner’ of the policy was deceased and the named beneficiary is disqualified, then the insurance company must pay out to the deceased’s estate. If the policy is ‘owned’ by the disqualified beneficiary, then the insurance company is not required to pay out.

This case illustrates how an estate can collect on a term life insurance policy that would have otherwise been disqualified because of the illegal actions of the beneficiary. The court is very clear that criminals cannot profit from their crime. Equally, this decision sends the message that the proceeds of an insurance policy can be payable to the deceased’s estate even when it is not the named beneficiary in the policy. This creates a distinction between policies taken out by the deceased and policies taken out by the alleged criminal.

This is a rare form of estate litigation but it does raise interesting challenges to basic principles. If you have an estates problem, contact the lawyers at Dale Streiman Law LLP. They have over thirty years of experience in estate matters, including a wealth of expertise in estate litigation.



[i] Papasotiriou v Manufacturer’s Insurance Co, 2012 ONSC 6473 available at http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6473/2012onsc6473.html

 

Domestic Contracts: What do they do, when are they used and how effective are they? And The Continuum of Enforceability

Date: 14 May, 2014

Domestic contracts are legally enforceable agreements concerning spousal relationships. The Family Law Act sets out rules for domestic contracts including subject matter and enforceability. There are three basic types of contracts that fall into the domestic contract category.

  1. Marriage contracts: An agreement between a married couple or a soon to be married couple (pre-nuptial agreement or pre-marital agreement). These contracts can deal with a variety of financial and property related issues but they cannot address child custody or access upon separation.
  2. Cohabitation agreements: An agreement between partners who intend to or are currently living together. This type of relationship is often referred to as a common-law relationship. These contracts can cover the same issues that marriage contracts can address.
  3. Separation agreement: This agreement is different from the first two because it is entered into when the marriage or cohabitation has already broken down. These agreements can address financial, property and support issues. They can also address custody and access for children, which the first two agreements cannot do.

For over ten years, the courts have been endorsing the merits of domestic contracts as a means for couples to make their own deal. Domestic contracts allow couples to control the settlement process rather than have a court impose a settlement upon them. The contract can address one or more issues and it is not uncommon for single issue contracts to be used. Generally speaking, the court will enforce the terms of a domestic contract unless there are grounds not to. These grounds are rare but there are specific public policy reasons that may apply. A properly drafted domestic agreement will avoid these pitfalls.

When considering a domestic contract, you should be aware of the continuum of enforceability. I deal with this topic in more detail in another blog post , but for the purposes of this post I will summarize it. The continuum of enforceability is a practical consideration in domestic contracts. It involves the increase in enforceability weighed against the increase in complexity and compliance of the contract in relation to legal requirements. A simplified example is the effectiveness of a perfectly drafted contract that considers the tiniest of details but is not signed versus a poorly drafted contract that is signed. The broad spectrum of enforceability must be weighed against the individual needs of the couple to determine what a properly drafted domestic contract is for that specific person. This concept requires a number of considerations. Legal advice from trained lawyers is required.

Importantly for marriage contracts, these agreements can perform dual functions. They are road maps for how the spouses intend to manage their married life and how they intend to separate, if they ever have to. The act allows couples to waive certain rights that they would normally be entitled to. This is especially important in terms of financial and property rights that spouses typically gain. A clearly worded marriage contract can allow one spouse to waive their rights to the other’s spouse’s property. There is, however, an exception as it relates to the matrimonial home. The Family Law Act says that any marriage contract provision that limits a spouse’s rights under part II of the act to the matrimonial home is unenforceable. The major right involved is the right to occupy the house.

Once a contract is created, a party can attack a domestic contract on four grounds.

  1. Validity: Allege that the domestic contract was not made correctly
  2. Enforcement: a specific provision violates the Family Law Act or some other statute
  3. Overriding Domestic Contract: The court has residual power to override agreements for certain reasons, generally public policy grounds.
  4. Interpretation of agreements: The interpretation of the agreement can be attacked if there is ambiguity or unclear terms.

Generally speaking though, domestic contracts will be respected by the court. Where they are challenged, the court can choose to remove one or more provisions from the contract or declare the entire agreement invalid. Contract law principles will form the basis for how the court evaluates a domestic contract. A critical factor in a domestic contract being upheld by the court is the simple concept of fairness. It does not need to be a reflection of a humanitarian award, but the contract cannot be shockingly unfair.

If you are interested in a domestic contract you should be aware that they are not simple or cheap to prepare. The starting cost for an agreement is $3,000. This expense provides an effective means for couples to set out their legal obligations. The lawyers at Dale Streiman Law LLP have been drafting domestic agreements for over 30 years. They will ensure that the contract meets all the legal requirements to be a valid and enforceable expression of your legal objectives while at the same time keeping costs down.

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[1] Link to “Domestic Contracts and the Continuum of Enforceability”

Traveling with Children

Date: 14 May, 2014

Post-separation, parents often find it difficult to travel alone with their children. These difficulties often lead to expensive last minute court applications and significant stress as parents scramble to make all the last minute arrangements. In extreme cases, there is the threat of parental abduction to either another part of Canada or internationally. This blog post will address some of the simple solutions available to parents to allay their fears and make traveling with children after a separation much easier.

Getting a Passport

The simplest way to facilitate efficient travel is by obtaining a passport for the child. Children over the age of 16 can apply for their own passport. Children under 16 years old can obtain a passport through the application of a parent, the custodial parent or the legal guardian of the child. There is an Order in Council, titled Canadian Passport Order ,that covers most of this information. It is available online for easy reference. The passport application also has a number of useful tips and checklists on it. Parents who have separated will need to submit all the documents relating to custody, access and mobility of the child with the completed application. These documents are extremely important in determining whether or not a passport will be issued.

Passport Canada pays special attention to access, custody and mobility of the child because of the legal significance that attaches to these terms. A parent with sole custody may not need the non-custodial parent’s signature to get a passport, provided they comply with all the requirements. Equally, non-applying parents in a joint-custody scenario need to consent to the passport being issued before Passport Canada will give the child a passport.

If you or your ex-suppose intend to travel with your child internationally after separation, you should advise your lawyer of this at the time of separation. That way they can incorporate specific language into the separation agreement or court order clarifying how and when a passport can be obtained. This will make the process much simpler when it comes time to get or renew a passport for the child.

Restricting Travel
In situations where conflict is high between the parents, they may want to restrict the ability of the other parent to travel with the children and obtain a passport. Once again, proactive steps at the time of separation are important to simplify the process later on. If there is a court order that requires both parent’s consent for the issuing of a passport, Passport Canada will not issue a passport unless there is a revocation or variation of that court order. Where warranted, mobility restrictions can be incorporated into the court order or separation agreement. This can restrict international and domestic travel with the child. In situations of extreme conflict, you can even obtain a court order completely prohibiting the child from having a passport.

Another option that won’t necessarily restrict travel but is a useful tool offered by Passport Canada is the passport system lookout. It does not prevent the issuance of a passport but it will generate an alert if an application is submitted under the child’s name. A parent can send a letter to Passport Canada and request that the child’s name be added to the list. However, where the parent is non-custodial, has no specified access and there is no court order or mobility restrictions on the child, Passport Canada may not add the child’s name to the list.

Finally, if there are real concerns about abduction parents can consider the use of Our Missing Children. This is a program run by Canadian law enforcement and other government agencies that helps find and return abducted children. It involves Canada Border Service Agency, therefore they can verify immigration information and manage national lookout reports on missing or abducted children. Similar to the passport system look, this program can issue an alert once a passport has been issued to the child. This tool is another method that does not prevent a passport from being issued to the child but rather serves as a warning system. It is mainly tasked with locating and returning children after they have been abducted (either by a parent or someone else).

Consents
Finally, outside of questions surrounding issuing or restricting passports for children, travel consents are a common method of facilitating one parent’s travel with their children. Consents are not official and there is no set requirement. A good example can be found at https://www.dalestreimanlaw.com/travel-consent-form.  This form consent has an official look to it that helps lend credibility to the document. An additional benefit is to fill out the standard form and then have a lawyer notarize it for you. This should help facilitate travel by lending the document more weight. It also may be beneficial to place a clause in any separation agreement or court order that requires either parent to provide a consent when requested. Parents should be wary, though, of consent request to countries that have not signed on to the Hague Convention. In a previous blog posting I addressed the Hague Convention at length. For clarity though, the convention is an international treaty that provides parents with a legal recourse to have their children returned to them. Non-signatory countries will not abide by the Hague Convention’s rules.

Traveling with children is a common problem that separated parents face. There are a number of elements at play. If you are looking to travel with your children but are not sure what to do about your uncooperative spouse, contact the lawyers at Dale Streiman Law LLP.

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For more information on the Order in Council see http://canlii.ca/t/lhhk
pptc155.pdf
Child Abduction in a Family Context

Predatory Marriage, Elder Abuse and the Court’s Power to Fix Wrongs

Date: 05 Mar, 2014

Elder abuse targets some of the most vulnerable members of Canadian society. The abuse does not have to be physical; finance abuse is also a very serious threat to seniors. When this is combined with predatory marriage, Canadian seniors face real threats to the personal safety, financial security and the legacy that they intent do leave behind. Luckily, the courts have a number of tools at their disposal to counteract this form of abuse. In this blog post I want to canvas several ways in which the courts can combat financial and estate abuse.

The case of Juzumas v Baron provides an interesting case study on how the court can correct the wrongs perpetrated through predatory marriage. The facts of the case show a pattern of abuse towards an elderly Lithuanian Canadian, Mr. Juzumas. He was targeted by Ms. Baron and her son through conduct that Justice Lang characterized as reprehensible. Ms. Baron initially provided housekeeping services for free to Mr. Juzumas. As things progressed, she increasingly took control of Mr. Juzumas’ life. She began taking $800 a month in fees for the housekeeping services. This moved up to $1200 over time. The two eventually married, not out of mutual affection, but because she wanted to secure a survivor’s pension. The two never lived together and Ms. Baron verbally abused her ‘husband’ regularly. When she discovered he had executed a will that would have denied her his largest asset, the house, she became furious. She orchestrated a transfer of the house to her son. Mr. Juzumas did not speak English, did not understand the transfer, and seemed genuinely surprised when he was told about it sometime after it was executed. Ms. Baron completely dominant Mr. Juzumas and he was dependent upon her, largely because he was terrified of ending up in a nursing home.

The court utilized the contract law doctrines of unconscionability and undue influence to render the transfer of the house unenforceable. The court also said there was evidence of non est factum (‘not my deed’ or ‘not my deal’) and that there was a lack of consideration (no money was given for the house). The facts of this case show that it was not just a bad deal that Mr. Juzumas wanted out of, there was serious wrong doing that made the contract unenforceable.

Ms. Baron also made a claim for quantum meruit, which is basically a claim for compensation for work that you have already done. In this case, Ms. Baron claimed that the months of housekeeping deserved compensation. The judge rejected this claim on several grounds. Firstly, there was never an agreement that she’d be paid. Secondly, she took compensation at $800 and then $1200 for most of the time. Thirdly, and most importantly, she cannot claim this type of relief because she is a wrong doer. As the judge put it, she does not have clean hands, her reprehensible behavior disqualifies her from any compensation she may have been owed.

Finally, Ms Baron also made claims to the house based on family law principles. She claimed the house was a matrimonial home, the value of which is subject to the equalization process. The judge rejected this claim on the basis that she never slept in the home, let alone ordinarily occupied it, therefore it was not a matrimonial home. The fact that it is not a matrimonial home means that Mr. Juzumas could deduct the value of the home at the date of marriage from the value of the home at separation for his net family property calculation. Ms Baron would have been able to claim a portion of the appreciation in value of the home through the equalization process. However, the judge found that the parties were validly married and separated all within the same day. Therefore, there was no appreciation in the value of the house to divide. The judge very skillfully used the family law to deny Ms. Baron any claim to Ms. Juzumas’ property.

This case provides a rare bright spot in the area of financial abuse of elderly Ontarians. The court was able to utilize the principles of contract law, family law and equity to deny Ms. Baron any compensation that she tried to take through her reprehensible behavior. This case involved a number of different fields of law. There were family law, contract law, wills and estates law and real estate law elements overlaid on top of a clear case of elder abuse. The interplay between these fields can be complex and requires significant expertise to sort through. The lawyers at Dale Streiman Law LLP have been leaders in these fields for decades. They have expertise on these issues and have successfully served client throughout southern Ontario.

By: Fred Streiman & Stephen Duffy
Fred-Streiman

Succession Planning: Lowering Your Beneficiaries Tax Bill on the Cottage

Date: 05 Mar, 2014

Succession planning is a field of law that deals with wills, probate and estate planning after a person dies. This field of law is largely governed by the Succession Law Reform Act in Ontario but there are a number of other factors that should be considered. One very important consideration is tax, specifically capital gains tax. This is a tax on the increase in value of a capital asset, such as a cottage, while it was owned. When a person is left property in a will, and they are not the deceased’s spouse, capital gains must be paid. The rate on inclusion for tax purposes has changed over the years, but it is safe to say that this tax bill can be large. This is especially true for the family cottage.

There is a common scenario in this type of case. A family cottage was purchased for a few thousand dollars decades ago. Over the years the price has ballooned to hundreds of thousands of dollars or maybe more. This appreciation in value attracts a large tax bill which could force the beneficiaries to sell the family cottage in order to pay it off. This defeats the purposes of passing on the family cottage to the next generation. However, it does not have to be this way. With proper succession planning the testator (person making the will) can arrange their affairs in a way that significantly lowers the tax liabilities that the property will attract.

As an example, there are two simple techniques for lowering capital gains obligations that the beneficiaries will owe on the cottage. The first is to gift the cottage to them now. This will attract an immediate capital gains tax which will be lower than the future tax (assuming rates stay the same and property values continue to increase). The second is to take out insurance through a life insurance policy that will cover the expected tax liabilities when the estate is settled.

These are just two examples of the ways that tax implications can effect succession planning. A blog post cannot fully address all the issues surrounding the interplay between tax law and succession planning. Every situation is different and there may be better solutions for you. The lawyers at Dale Streiman Law LLP can help customize a succession plan perfectly tailored to your needs.

By: Fred Streiman and Stephen Duffy
Fred-Streiman

Estate Trustee, Civil Procedure and Punitive Damages: The Power of the Courts to do More than they Were Asked For

Date: 05 Mar, 2014

In a previous blog post[1], I discussed the role of estate trustees and the consequences they face when they fail to live up to their fiduciary duty. The estate trustee is responsible for carrying out the last wishes of a person who died. Their fiduciary duty imposes responsibilities to look after the estate in a trust worthy manner with an eye to the interests of the beneficiaries. This is even more important when the estate trustee is looking after the estate for the benefit of children. This is the scenario that existed in Walling v Walling where the deceased appointed his brother as trustee over his estate. The deceased’s sons were minors at the time, therefore the will required the estate trustee to look after the estate until the youngest boy reached 21, at which point the trustee was obligated to turn over the estate to the boys. Unfortunately, this never happened and the children were forced to bring legal action to recover their father’s estate.

This case is important because it highlights the court’s power to impose significant penalties, even penalties that go beyond what the plaintiff is asking for, when the facts demand it. Punitive damages are a special type of money award that the courts can give. Typically, damages are awarded for specific harm, punitive damages are different though. They are designed as a punishment for conduct that the court deems particularly offensive to society. Their use is fairly rare in Canada but they will be used when the facts show a clear need.

This case warranted punitive damages because the trustee was exclusively responsible for a severe harm done to the children. By denying them their inheritances, the estate trustee made it difficult financially and limited their post secondary education opportunities. Furthermore, the trustee’s actions in excluding the children from their father’s funeral and denying them any significant sentimental mementos were particularly offensive. He was in a position of power and trust and he broke that trust to exploit the vulnerable children. The judge looked at the facts and award $100,000 in punitive damages. This was double the amount requested by the boys. The judge said it was warranted because a lower award would not properly reflect the court’s abhorrence of this type of conduct. Additionally, the judge was to use this award as a clear deterrent to others who may try similar actions in the future.

In litigation, there are rarely any certainties about the outcome the judge will provide. The court’s focus is upon justice and the judge’s decision will bear that in mind. In situations where a judge thinks a large amount is required they can go beyond what the parties have requested. Doubling punative damages in this case was warranted because of the specific effects that the estate’s actions had upon the children. This is certainly a rare occurrence, but it happens with enough regularity that people should take note of it.

The lawyers at Dale Streiman Law have practiced estate litigation for decades and are experts in all facets of estates law. They can help resolve any estate disputes in a timely and cost effective manner.

[1] Executors, Trustees and Breach of Fiduciary Duty: What Happens When an Estate Trustee Ignores Their Responsibilities?