These slogans which originated in the spring of 1939 were messages to be used to instill calm in the British public in a time of war. KEEP CALM AND CARRY ON has been used and reproduced in many messages of recent application for a wide array of products and subjects, for instance...
KEEP CALM AND LAWYER UP - yet its original use was part of the British Government's motivational campaign of sorts to raise the morale of the public in preparation for predicted mass air raids during WWII. The essence of the messaging - keep calm in the face of adversity, voraciously defend your freedom, courage and resolve will lead to success.
These simple messages resonate now. The messages inspiring confidence and determination.
With COVID-19 which continues to affect all humanity, especially our elderly population, and, racial atrocities which continue and have come to light time and time again, this time because of the recent sad and terrible deaths of George Floyd, Breonna Taylor and Ahmaud Arbery, it is a time to reflect - each of these messages appropriate and sage in the wisdom of their words. I hope this civil rights movement is the last, in that we achieve our united goal of true and lasting equality.
For our readers who are advocates, we are privileged to have the ability to advocate, to have a voice, to use our voice on behalf of others, and, to make a real difference in each and every issue that has made the headlines this month - I encourage you, in fact, I challenge you to make your own difference and try to bring help, hope, systemic change and equality for all humanity.
Enjoy the read,
1. STEP AWARDS 2020
Congratulations to Professor
Albert Oosterhoff, TEP, Honorary Member, STEP Worldwide
and Katy Basi, TEP for winning the 2019 Best Article, Implications of Re Milne Estate: Are Multiple Wills the Tip of the Iceberg? The article was published in the STEP Inside E-Newsletter Vol. 7 Issue 1 - January 8, 2019.
STEP members can access this article in the STEP member portal under
, under Resources.
This award is presented to the authors of the best writing published by STEP Canada in its national newsletter, STEP Inside.
2. ONTARIO BAR ASSOCIATION ELDER LAW PASSPORT SERIES PROGRAM - CAPACITY FOR LAWYERS: ELDER & CORPORATE CLIENT MATTERS, JUNE 17, 2020
On June 17, 2020 Kimberly Whaley presented at the Ontario Bar Association on Elder Law & Corporate Client Matters.
3. INTERNATIONAL FEDERATION OF AGING (IFA) VIRTUAL TOWN HALL SERIES, JUNE 19, 2020
Kimberly Whaley will be providing opening remarks on June 19, 2020 at the International Federation of Aging Town Hall Series:
COVID-19 and Older People.
4. ONTARIO BAR ASSOCIATION AND OAKVILLE PUBLIC LIBRARY, LAWS PROTECTING OLDER ADULTS, JUNE 24, 2020
Kimberly Whaley will be presenting for the Ontario Bar Association at the Oakville Public Library & White Oaks Library Branch by webinar on The Laws Protecting Older Adults.
5. ONTARIO BAR ASSOCIATION AND HAMILTON PUBLIC LIBRARY, The LAWS PROTECTING OLDER ADULTS, JUNE 29, 2020
Daniel Paperny will be presenting for the Ontario Bar Association at the Hamilton Public Library's Central Branch location by webinar on The Laws Protecting Older Adults.
6. MATTHEW RENDELY AND DANIEL PAPERNY APPOINTED TO OBA COMMITTEES
We are proud to announce that Matthew Rendely was appointed as a CPD Liason to the OBA Elder Law Executive Committee, and Daniel Paperny was appointed as a Member-at-Large to the OBA Sole, Small Firm and General Practice Executive Committee.
We look forward to continuing to represent and advocate for our colleagues, clients and the public at large on these two OBA Executive Committees.
WEL PARTNERS VIDEO ON ELDER LAW, JUNE 2020
We are pleased to share with you our new Elder Law Video. Please feel free to share it with your colleagues.
|WEL Partners on Elder Law - Video Presentation (June 2020)
This video is LSO accredited and contains 15 minutes of Professionalism Content and is eligible for up to 0.75
The video is an overview of our recently released new book, Whaley Estate Litigation Partners on Elder Law which is available for download in PDF format from our website:
If you would like to receive a hard copy of our book we would be happy to send you one (while supplies last). P
lease contact Blossom
to make arrangements.
WEL Congratulates STEP Canada 2019 Award Recipients
2020 Michael Cadesky Volunteer of the Year Award
Ruth March, TEP
2019 Branch & Chapter Volunteer of the Year Award
Ruth March, TEP
Vance LeCocq, TEP
Michelle Coleman, TEP
Marilyn Piccini Roy, TEP
Francois JMJ Asselin
Harris Jones, TEP
Lisa Heddema, TEP
Harmanjit Mavi, TEP
Tracy VanPuymbroeck, TEP
Michael Naito, TEP
Faisal Khorshid, TEP
Yunhong Amy Lin
Presentation and Writing Awards
Janet Michelin, TEP
Carmen Thériault, TEP
Ann Elise Alexander, TEP
Troy McEachren, TEP
Amanda Stacey, TEP
Melanie Yach, TEP
Katy Basi, TEP
Professor Albert Oosterhoff, TEP, Honorary Member, STEP Worldwide
Pamela Cross, TEP
Chris Ireland, TEP
Leanne Kaufman, TEP
Congratulations to the incoming CBA and OBA Section Executives for the 2020-2021 year.
OBA 2020-2021 ELDER LAW SECTION EXECUTIVE
Lawrence J. Swartz, Chair
Amy MacAlpine, Vice-Chair
Natalia Rosa Angelini, Past-Chair
Amelia Yiu, Secretary
Diane Vieira, Newsletter Editor
Alexander Procope, CPD Liaison
Matthew Rendely, CPD Liaison
Jennifer Corak, Technology Liaison
Raymond G. Leclair, Public Affairs Liaison
Harold L. Geller, Regional Representative
Members at Large:
Hayley A. Peglar
Judith A. Wahl
Kimberly A. Gale
Holly V. Cunliffe
Sheila C. Morris
Blair Lesley Botsford
Jonathan W. Morse
CBA NATIONAL ELDER LAW SECTION
Effective September 1, 2020
, the CBA National Elder Law Section Officers will be:
Jessica L. Lyle, Chair
Russ Weninger, Vice-Chair
Eric Clavier, Secretary
Kavina Nagrani, Past Chair
Members at Large:
Julia Borges, Student representative
Brett Ryan Book, Student Representative
Honourary Members at Large:
Donna Lynn Gee
Kimberly Ann Whaley
We asked our team to share some of their favourite Covid-19 shows and here's our list:
- The Great British Bake Off
- Man Like Mobeen
- Bar Rescue
- Brooklyn 99
- Nancy Drew
- Death in Paradise
- Salt Fat Acid Heat
- Crazy Head
- Russian Doll
- Letter Kenny
- RuPaul's Drag Race
Congratulations to our
May Newsletter Spot the Differences winners!
Pile of pen, book, paper
Pile of pen, book - paper is missing
Coffee Crisp wrapper
Coffee Crisp bar
Bottle - whiskey
Bottle - water
Monitor - WEL home page
Monitor - WEL resources page
Glasses - upside down
Glasses - right side up
Post-it notes - 2 pads
Post-it notes - 1 pad
Tylenol - closed
Tylenol - open, lid to side
Flower - black vase
Flower - blue vase
Pile of papers on right
Pile of papers on right - colours on bottom
Cell phone - plugged in
Cell phone - no cable
By Mark Handelman
IN THE CULINARY COURTS OF CANADA:
THE CUMIN RIGHTS TRIBUNAL OF ONTARIO
LAMB CHOP et. al.
The Respondent: Mrs. Yam
The Applicant: Lamb Chop
The 'Applicant' Cumin claims discrimination by each of the 'Respondents'.
The essence of the combined allegations are, "I'm in every kitchen but you all ignore me." Cumin in its powdered form would just like a fair shake.
This is a "Palate Action suit."
When there are many Applicants or Plaintiffs and few defendants that is called a "glass action suit."
When there is but one Applicant and many Respondents, that is called a "plate action suit." In the specialized circumstances of all of the Respondents being foods, the action becomes known as a "palate action suit."
I have listened carefully to all the evidence, reviewed all the exhibits and eaten most of the submissions, Brussels sprouts being the notable exception. This Hearing took place over many mealtimes.
Lamb Chop: Cumin alleges this Respondent always discriminates against it, preferring Rosemary for no good reason. Lamb Chop prefers to be marinated in olive oil, salt, pepper, garlic, lemon juice and Rosemary.
Cumin says it is a small accommodation to replace the last ingredient with it and points out how common such a marinade is in Moroccan cuisine.
Lamb Chop also alleges that Cumin does not compliment Mint Sauce, its common accompaniment.
Cumin says anyone needing mint sauce to enjoy lamb should be forced into veganism but I make no finding in that regard. Judgment for the Applicant. I feel compelled to point out that the scurrilous allegations of a scandalous affair between Rosemary and Basil played no part in this decision.
Carrot: This sweet vegetable has innumerable culinary tricks but its preference is to be simmered in butter, honey, salt, pepper and garlic. Why, asks the Applicant, can it not be part of that process? And, cumin is correct in the allegation that this Respondent prefers a bias to its cut. Judgment for the Applicant (I should note that during the Hearing, this Respondent was consumed).
Egg: What, you've never had Shakshuka flavoured with cumin and harissa? Dice and sauté the onions, add the diced tomatoes, salt, pepper, harissa and cumin and when it is almost boiled down enough, crack two eggs onto the sauce and let it simmer until the eggs are done. Judgment for the Applicant.
Brussel Sprout: Applicant failed to prove this is an actual food. In its defence, this Respondent argued it was nothing more than an excuse to get bacon bits onto the dinner plate. This BS Application is dismissed.
Sweet Potato: This Respondent, also known as 'Sam I Yam,' came to the Hearing smashed, patting butter inappropriately.
Cumin took the opportunity to insinuate into the butter as it was being patted. When Mrs. Yam arrived in search of her spouse and saw Mr. Yam patting the butter, she was already raw (of course) but became spiralized and doused herself in sesame oil, lemon juice and cumin and garnished with black sesame seeds. [Sadly, supply line disruptions meant no scallions were available.] Many Hearings benefit from a serendipitous moment, which was the result. Judgment for the Applicant.
Ice Cream: Applicant, give your bottle a shake. Whatever were you thinking? Quality Ice Cream of any flavour is a frolic of its own. Dismissed.
Chicken: Allegations against this Respondent were not proven. Chicken does not discriminate against anything. Except ice cream. Perhaps. Dismissed.
Pork Chop: With brown sugar and cumin? Oy! Judgment for the Applicant.
Beet: Slices of beet were in their salad days during the Hearing. Again with the olive oil, lemon juice, salt pepper and cumin, feta optional? Yes! Judgment for the Applicant.
Next Month: Savouring results from The Court of A Peel.
Mark Handelman is Counsel to our firm. He is a former member of The Human Rights Tribunal of Ontario and currently a part time Member of The Ontario Consent and Capacity Board. While he practised law in London Ontario, he wrote over 300 restaurant reviews and food articles for The London Free Press.
TIME TO REVIST THE ROLE OF COUNSEL
By Mike Marra
During the COVID crisis there has been a proliferation of court decisions which touch upon the role of counsel in family law disputes. Perhaps this stems from the increased scrutiny arising from counsel gaining access to the court based on the enunciated threshold test of urgency. These considerations are also applicable to estate and power of attorney disputes. These disputes also involve families and can be debilitating.
One of the most extensive written judicial commentaries was recently set out by Justice Marvin Kurz of the Superior Court of Justice in Alsawwah v. Afifi, 2020 ONSC 2883.
Justice Kurz opened his reasons with the following reference:
- The famous American trial lawyer, Louis Nizer, once wrote that "[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself." This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart. I recommend it in this case.
In the body of his reasons for decision he takes a moment to use his platform:
A Word or two About Rhetorical Excess in Family Litigation
. Having been required by the exigencies of this motion to closely and frequently review the materials filed in this motion, I feel constrained to offer a few words of caution to the parties, their counsel and to the profession as a whole.
. Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling duty bound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.
. Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents' struggle, can leave their field of battle scarred for life.
. The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court.
. Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel not flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize the truth of Mr. Nizer's aphorism that began these reasons, all too many, unfortunately, fail to do so.
. In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:
Evidence regarding a former spouse's moral failings is rarely relevant to the issues before the court.
Nor are we swayed by rhetoric against the other party that verges on agitprop.
Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for "context".
Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties' materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.
A lawyer's letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.
Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party's failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.
While dealing with that moral high ground, many capable counsel advise their clients against "me-too" ism. One side's failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.
There has been a great deal of favorable commentary online amongst the family law bar regarding these comments. I have heard variations of these comments from some judges in open court for well over thirty years. Yet very little has changed. The system is adversarial by nature. These comments apply equally in the estate and capacity practice area. Elder capacity disputes are in essence custody and access disputes involving vulnerable older adults without a specialized court or rules.
The struggle is underpinned by the framing of the role of counsel as an advocate for the client in the Rules of Professional Conduct of the Law Society of Ontario:
When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.
Role in Adversarial Proceedings
- In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.
 This rule applies to the lawyer as advocate, and therefore extends not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals, arbitrators, mediators and others who resolve disputes, regardless of their function or the informality of their procedures.
 The lawyer's function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client's case.
 In adversarial proceedings that will likely affect the health, welfare or security of a child, a lawyer should advise the client to take into account the best interests of the child, if this can be done without prejudicing the legitimate interests of the client.
 A lawyer should refrain from expressing the lawyer's personal opinions on the merits of a client's case to a court or tribunal.
 When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client's case so as to ensure that the tribunal is not misled.
 The lawyer should never waive or abandon the client's legal rights, such as an available defence under a statute of limitations, without the client's informed consent.
 In civil proceedings, a lawyer should avoid and discourage the client from resorting to frivolous or vexatious objections, attempts to gain advantage from slips or oversights not going to the merits or tactics that will merely delay or harass the other side. Such practices can readily bring the administration of justice and the legal profession into disrepute.
These obligations constitute what is often referred to as "zealous advocacy". It is often difficult to navigate the line between zealous advocacy on behalf of the client in accordance with the client's instructions and the expectations of the Court. The inclusion of sub rule (4) regarding the best interests of the child is the opening for a lawyer to move away from the zealous advocacy role in family law matters. There is no such opening when dealing with the capacity of an older adult and the destructive effect of litigation on the family as a whole.
It takes years of experience to learn how to manage and meet the expectations of the client, the Court and the Rules of Professional Conduct.
I suggest that the inherent problem is the adversarial system in these practice areas. There has been a great deal of discussion in the family justice sector regarding a re-imagining of the system to eliminate the historical adversarial model but there has been little traction to date. Without an elimination of the adversarial system in all but the most grievous cases I expect that judges will still be trying to send this message thirty years from now after perhaps I am finally retired.
ENFORCING SETTLEMENTS AND SETTLER'S REMORSE
By Sareh (Lua) Ebrahimi
Lawyers are usually happy when clients enter into minutes of settlement ("MOS") hoping that it is an end to their protracted litigation, or even if before proceedings are commenced, avoiding protracted litigation. There may however be issues that arise where one party might refuse to comply and cooperate with the other party, or, to give effect to the terms of the settlement. There may also be remorse, or a desire to resile from the agreement. In this event, the party is entitled to apply to the court for an order enforcing the MOS.
This is just what happened in the case of Wiley v. Kimball.
Fern (the "Deceased"), passed away on May 10, 2014, leaving her estate to her three children, Diane, Richard, and Harold. Diane and Richard were appointed as Estate Trustees and were the Applicants in this proceeding (the "Applicants"). Harold passed away on August 24, 2014, and his wife Judith was appointed as Executrix of his estate. She is the Respondent in this Proceeding (the "Respondent").
There were several issues that the parties could not agree upon respecting the administration of the Deceased's estate, such as the ownership of various properties, GICs, distribution of jewelry; and, calculation of Estate trustee compensation.
The parties attended a mediation where an agreement was reached and MOS signed. All the parties were assisted by counsel at the mediation. The MOS dealt with all of the issues.
After the execution of the MOS, some of the provisions in the agreement were already completed. The parties had reached an impasse with regards to a few remaining issues that had already been agreed to and dealt with in the MOS. Therefore, the Applicants commenced an application (the "Application") seeking orders consistent with the terms of the settlement.
Counsel for the Applicants argued that the parties were bound by the MOS, an argument that the judge agreed with. The court looked at the case of Olivieri v. Sherman which stated the following:
"The settlement agreement is a contract. Thus, it is subject to the general law of contract regarding offer and acceptance. For a concluded contract to exist, the court must find that the parties: (1) had a mutual intention to create a legally binding contract; and (2) reached agreement on all of the essential terms of the settlement."
The Respondent did not dispute that there was no agreement reached between the parties, she argued that the Applicants had not complied with the settlement because they had not yet transferred the required property to her as per the MOS, and therefore, they were not entitled to enforce.
For the court to consider the Respondent's submission, it considered the events that occurred subsequent to the execution of the minutes of settlement. Upon reviewing the evidence, and the cross-examination of the Respondent, it was evident that it was due to the Respondent's inaction that the property was never transferred to her.
The Respondent's counsel also argued that the Estate Trustee's compensation was unfair. The judge rejected the argument on the basis that the parties had previously agreed to compensation payable to the Estate Trustees and that they were entitled to same in the normal course of administering an estate.
The court considered the case of Donaghy v. Scotia Capital Inc., which stated the following:
"The principle of finality is an important principle. Settlements entered into with the assistance of counsel should be upheld except in the clearest of cases and in exceptional cases."
In granting the Applicants' Application, the court stated:
This case is one where a reasonable settlement was reached at mediation by all parties with the assistance of counsel. Subsequent to the settlement, the respondent resiled from the settlement without a reasonable explanation. In my view, the settlement is one that ought to be enforced.
Minutes of Settlement are legally binding contracts that are enforceable by a court.
Wiley v. Kimball,
2020 ONSC 2691, 2020 CarswellOnt 6036 [Wiley]
Olivieri v. Sherman, (2007), 86 O.R. (3d) 778, At para. 41,
Donaghy v. Scotia Capital Inc.,  O.J. No. 2157, aff'd 2009 ONCA 40, at para. 6:
Note: Due to the Covid-19 Pandemic many upcoming events are being cancelled, rescheduled or moved on-line. Please check the event info links for the latest information from the event organizers.
Passing of Accounts
July 9, 2020
Speakers: Kimberly Whaley, Professor Albert Oosterhoff and Tracey Phinnemore
Law Society of Ontario, Practice Gems: Administration of Estates 2020
September 21, 2020
Chairs: Kimberly Whaley & Timothy Grieves
CBA Professional Development
I do, do I? Capacity to Marry and Divorce Over Time
October 6, 2020
Speaker: Kimberly Whaley
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
October 9, 2020
Speakers: Mike Marra and Matthew Rendely
GTAAN/FTAFN Accountants Network
Trusts & Estates For Financial Professionals
October 20, 2020
Speakers: WEL firm members
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
October 23-26, 2020
Decisional Capacity: A Wills & Estates Context
Speaker: Kimberly Whaley
Estate Planning and Litigation Forum
November 11-13, 2020
STEP Global Special Interest Group (SIG) Annual Conference
December 4, 2020
Speaker: Kimberly Whaley
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 11, 2020
Speakers: Daniel Paperny and Bryan Gilmartin
Toronto Lawyers Association
Serious Illness Decision Making
January 28, 2021
Speaker: Kimberly Whaley
International Federation of Ageing-15th Global Conference on Ageing
Niagara Falls, March 3-5, 2021
Speakers: Daniel Paperny and Matthew Rendely
Ontario Bar Association, Elder Law Section Program
Your Comprehensive Guide to Section 3 Counsel Under the Substitute Decisions Act
NEW DATE TO BE CONFIRMED
Chairs: Kimberly Whaley and Alex Procope
VIII. IN CASE YOU MISSED IT - RECENT BLOG POSTS
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