Published in The Lawyer’s Daily, April 13, 2018

By Paul Iacono and Susan Hyatt

In the next decade Canadian baby boomers stand to inherit about $750 billion which is a direct consequence of our aging population. Another consequence of that is the rising incidence of dementia and other cognitive disorders which is already at epidemic levels and will only get worse in the future.

It means there will be more disputes about a person’s ability to handle their own care or to make their own financial decisions. However, only 50 per cent of Canadians have a will today, and more than 70 per cent of them have no powers of attorney for personal care and for property.

Thus, prepare for a sharp increase in litigation involving estate disputes, and along with that will come severe financial and emotional distress. Indeed, far too many families have been ripped apart over such things.

A good example is the case of Foley v. McIntyre, which was a dispute between two siblings over their parents’ estate. The son and daughter had received legacy gifts from their elderly parents that were subsequently challenged by the son. The first legal proceeding was launched in 2003, on the basis that the father lacked capacity and was unduly influenced by his daughter. The litigation escalated from there and several other claims were added. The father had also given his daughter his power of attorney.

The case reached the Superior Court in 2013 and the trial took five days. The presiding judge reserved and months later released a lengthy, complicated judgment vindicating the daughter. The son appealed, and by the time the Court of Appeal released their decision in 2015 (Foley v. McIntyre 2015 ONCA 382), the litigants had spent almost $1 million in costs. In the final result the father’s instructions were upheld, but a family relationship had been destroyed.

Foley v. McIntyre is a classic example of a family legal dispute that could have been kept out of the courtroom. In 2013, former Ontario Chief Justice Warren Winkler was attempting to initiate a process whereby all family law disputes would start with a mediation process before they could begin a court action. Unfortunately, the chief justice retired before this process could be implemented. What with current demographic realities and the upsurge in estate litigation, the time to protect families from estates litigation is now.

A good solution is a new concept for Canadian law — Eldercare Dispute Resolution, or EDR. This new concept effectively decreases the costs for a family and achieves the desired resolution in an efficient and timely manner. In essence, it combines eldercare and crisis management with conflict resolution provided by professional mediators. It is long overdue.

EDR is a three-part process. Here is how it works.

First, an eldercare assessment is conducted and an action plan prepared. Then the professional mediators take over and support the client in navigating any outstanding issues. Third, the action plan is rolled out for the individual and/or family, and the mediators are available for further support, if required.

The whole idea is to provide consulting in conflict management, along with group facilitation, and the objective is clear — reach an effective solution without a long, drawn-out legal battle. It is a better

and more cost effective option for people and their families when they have to deal with crises involving health challenges, the loss of a partner or any number of financial issues.

Consider this example which is becoming very common nowadays. A family with an elderly parent is suddenly faced with a maze of decisions because that mother or father can no longer make decisions and can no longer live safely in their own home. And the adult children have reached an impasse about what to do next and how much to spend.

With EDR the whole idea is to reach an effective solution and not to take sides with lawyers arguing on behalf of their clients. Families need to know there is an alternative to litigation. As the old adage goes, an ounce of prevention is worth a pound of cure.

Paul Iacono is the founding principal of YorkStreet Resolution Group, a panel of professionals focusing on mediation, arbitration, appraisal and neutral evaluations. Susan Hyatt is CEO of Silver Sherpa, Inc., which provides crisis management and proactive planning services for the elderly and for their families. They would like to thank Alicia Kuin, a mediator, for her assistance with this article.

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