Fantastic Elder Law Conference Coming to Vancouver in November: Save the Date!

The Continuing Legal Education Society of British Columbia, Canada's leading providing of continuing professional training for lawyers, and the Canadian Centre for Elder Law are hosting the Canadian Elder Law Conference on 12 and 13 November in 2015. The conference is open to anyone with an interest in the legal and other issues affecting Canada's elders, but will be of most interest to lawyers, financial planners and mental health professionals.

The conference is extremely timely, given Statistics Canada's recent report showing that there are now more Canadians who are older than 65 than those who are under 15. In fact, the baby boomers, the oldest of whom turned 65 in 2011, make up a greater share of the population than any other age group.

The boomers are also the first generation for whom divorce carried only a marginal stigma, as a result of the introduction of the original Divorce Act in 1968. But not only are more older persons divorced or separated than ever before, more are forming new married or unmarried spousal relationships. This poses special challenges for the legal and mental health professionals involved in family breakdown, as we can expect, in the very near future, to be helping more clients with significant physical and mental illnesses, more living on fixed incomes and in poverty, and more requiring institutional or assisted home care. Cases involving persons of retirement age often raise special concerns and competing generational interests about the distribution of income and assets following separation; concerns can also arise about the tension between the interests of employed persons wishing to retire and dependent persons unable to survive without spousal support. Dealing with later-in-life separation also demands a special sensitivity to the needs of women, who have lower incomes than men in general, and are disproportionately affected by separation and divorce.

I've written about the economic consequences of separation and divorce later in life, the federal benefits available to older Canadians and the interplay of spousal support and retirement in a paper for the National Judicial Institute, which you can download (PDF) from the website of the Canadian Research Institute for Law and the Family.

This conference is a must for anyone practicing family law or involved in family breakdown from a financial or therapeutic perspective. The full details, including the agenda, are available on CLEBC's website and CCEL's website, but here's the stuff you need to know.

Place: Pan Pacific Hotel, Vancouver BC 

Date: 12 and 13 November 2015, 9:00 am to 4:30pm both days 

CPD Credits: 12.5 hours, including 2 hours on ethics 

Pricing: Early bird registration of $1,005 ($585 for students) ends 15 October 2015. The registration fee thereafter is $1,110 ($585 students), or $990 if you want to attend by webinar.

Keynote speakers include:

• Barb MacLean, Chair of the British Columbia Council to Reduce Elder Abuse
• Isobel Mackenzie, British Columbia's Seniors Advocate
• Dr. Andrew Wister, Chair of the National Seniors Council

Panelists presenting at the conference include myself and: 

• Hon. Marion Allan, Clark Wilson
• Barbara Buchanan, Law Society of British Columbia
• Deidre Herbert, McLellan Herbert
• Anna Laing, Fasken Martineau
• Andrew MacKay, Alexander, Holburn, Beaudin and Lang
• Catherine Romanko, British Columbia Public Guardian and Trustee
• Kimberly Whaley, Whaley Estate Litigation
• Geoffrey White, Geoffrey W. White Law Corporation

The topics to be addressed include:

• Advance health care planning
• Whether a national power of attorney registry would help reduce elder financial abuse
• Update on guardianship law in British Columbia
• Reporting and responding to suspected elder abuse
• Physician assisted suicide and health care decision-making
• Later-in-life separation and divorce
• Dementia and client competency
• Class action litigation in elder and estate law

Save these dates and head on over to CLEBC's website to register now. Space is limited.

Webinar on Predatory Marriages Offered

Carswell, one of Canada's leading providers of legal materials and now a of providers of continuing legal education programs, has announced an upcoming webinar on predatory marriages in Canada taught by Albert Oosterhoff, an adjunct law professor at the University of Toronto, and Kimberly Whaley a lawyer practicing in Ontario. The program summary offers this intriguing description:

"Predatory marriages result when an unscrupulous opportunist, who, purely for financial gain, marries a person with limited or compromised capacity or cognition. Predatory marriages are a form of exploitation and abuse of older adults. These marriages occur when one party to the marriage is incapable of understanding, appreciating, and formulating a choice to marry. Given that marriage brings with it a wide range of property and financial entitlements, perpetrators of such marriages have much to gain and the vulnerable older adults have much to lose when preyed upon in this fashion.    

"This webinar will help attendees identify and recognize signs of potential 'predatory marriages' and will provide attendees with an overview of the current and past case law as well as legislation affecting such marriages and the requisite capacity to marry in Canada"

It sounds like a very interesting course, especially given the graying of family law and rise of elder law.

The program runs from noon to 1:00pm EST (note that this is eastern time!) on Tuesday 4 June 2013, and comes at the rather reasonable cost of $90. For more information:

1. go to the website of the West LegalEdcentre;
2. in the "Search for CLE Programs" box at the middle of the page, enter "predatory marriages" in the Keywords text box;
3. click "Search;" 
4. click the grey box labeled "Live Webcast" in the results page that will pop up; and,
5. click on the program title in the new page that will pop up.

(Carswell, if you'd like some tips about how to make it easier for people to find programs like this on your website, send me an email.)

Adult Children's Access to Parents Now Mandatory in China

The BBC has reported on an innovative new law enacted by the Chinese government that would require adult children to visit their parents or risk being sued by the state for their neglect. This is a serious problem in China, which lacks affordable elder care despite an eighth of the population being over sixty.

In British Columbia, where we do have a socialized system of health care and elder care options, we are of course proceeding in the opposite direction. Not only do we not have a law requiring adult children to visit their parents, our law requiring adult children to support to their parents was repealed by ss. 258 and 482 of the Family Law Act on 24 November 2011.

See the CBC report or the Financial Post report for further discussion of this innovative new law.

Court of Appeal Releases Decision on Capacity

On Friday, the Court of Appeal released its decision in Wolfman-Stotland v. Stotland, a case about the mental capacity required to obtain a declaration of irreconcilability. There have been a number of cases like this over the last few years, and I expect that as our population ages, cases on other elder law issues will become increasingly commonplace.

In Wolfman-Stotland, the parties were both in their 90s and each had lived in a separate assisted living facility for several years before the wife commenced proceedings in June 2010. In October 2010, counsel for the wife applied for a declaration, under s. 57 of the Family Relations Act, that the parties had no reasonable prospect of reconciling with one another. Although this declaration is really about protecting property and has nothing to do with separation or qualifying for a divorce, it nevertheless requires to the court to make a conclusion about the wife's intention to end the marriage and therefore about her capacity to form such an intention. The court summarized the issue with this quote from Mental Disability and the Law in Canada by Gerald Robertson:

"Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention."

After discussing the evidence on this point, particular that of a mental health expert, the court cited with approval the discussion of capacity set out in a 1997 case out of Ontario called Calvert v. Calvert:

"Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.

"The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend ...

"There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will ... While Mrs. Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce."

It has always been curious in my view that the mental capacity to enter a marriage should be so low compared to the mental capacity required to leave a marriage; doubtless this is a result of the social and religious stigmata formerly associated with divorce. In any event, on the strength of the expert's conclusion that the wife had the mental capacity to instruct counsel on the financial aspects of the parties' divorce, the court of appeal concluded that the wife also had the capacity to "to form the intention to live separate and apart" and therefore also the capacity to apply for the s. 57 declaration.

Another good case on a related issue is the Supreme Court's 2005 decision in M.K.O. v. M.E.C., which involved the capacity of a party to apply for a divorce where the divorce action is commenced by the party's litigation guardian. This decision is very well written and worth a read. More information about s. 57 declarations can be found in an older post, "The Ins and Outs of Separation."