WEL Newsletter, Vol.8 No.11, February 2019



HAPPY VALENTINE'S DAY FROM
WHALEY ESTATE LITIGATION PARTNERS!
 
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PART I: WEL NEWS
1. 
ALBERTUS MULTORUM GRATULATIONES! ALBERT OOSTERHOFF, PROFESSOR EMERITUS IS THE 2019 RECIPIENT OF THE OBA AWARD OF EXCELLENCE IN TRUSTS AND ESTATES LAW

It is with such pleasure that all of us at WEL congratulate Professor Albert Oosterhoff, our firm counsel, colleague and friend on the great achievement and honour of being this year's recipient of the Award of Excellence in Trusts & Estates which will be presented to Albert at the end-of-term dinner on June 4th.
 
Albert is one of the notable legal academic scholars of our time. Albert is author of so many legal journals, publications, and texts, including the seminal, "Oosterhoff on Wills", and "Oosterhoff on Trusts". Albert has been cited by courts in Canada in at least 245 decisions including over 60 from our Ontario Court of Appeal, and at least 7 times by the Supreme Court of Canada. Our courts have relied on Albert's scholarly writings in several foundational cases including:

Rawluk v. Rawluk , 1990 1 S.C.R. 70; Clarkson v. McCrossen Estate, 1995 CarswellBC 39; Banton v. Banton, 1999 CarswellOnt 2596; Howell v. Howell Estate, 1999 BCCA 371; Doucet-Boudreau v. Nova Scotia (Department of Education), 2003 SCC 62; Pecore v. Pecore, 2007 sec 17; Frye v. Frye Estate, 2008 ONCA 606; Bank of Montreal v. i Trade Finance Inc., 2011 SCC 26; Kerr v. Baranow, 2011 SCC 10; Mayer v. Osborne Contracting Ltd., 2012 Carswell BC 475; Schwartz v. Schwartz, 2012 ONCA 239; Rascal Trucking Ltd. v. Nishi, 2013 SCC 33; Hanson v. Mercredi, 2014 CarswellAlta 1019; Creyke v. Creyke, 2016 BCCA 499, 2016 CarswellBC 3543; Klein v. Wolbeck, 2016 ABQB 28, 2016 CarswellAlta 61; Dagg v. Cameron Estate, 2017 CarswellOnt 655; Dunnison Estate v. Dunnison, 2017 CarswellSask 251, 2017 SKCA 40; Horch v. Horch, 2017 CarswellMan 452; 2017 MBCA 97; Panda Estate (Re), 2018 CarswellOnt 19212; Valard Construction Ltd. v. Bird Construction Co., 2018 CarswellAlta 261; and Milne Estate (Re), 2019 ONSC 579.
 
Albert's contributions to the legal profession in Ontario and across Canada through a life time of commitment to the law is undeniably meritorious. With over 60 years at the bar, Albert continues to contribute through his writings and consultations to the development, improvement and reform of the law in Canada for the benefit of Canadians. He is a leader who has influenced the legal education of generations of lawyers and remains extremely generous with his time, teachings, advice and mentoring.
 
Congratulations Albert on receiving this deserved recognition from your colleagues and friends at the bar and on the bench. Please enjoy this wonderful honour Albert.
2. WEL WELCOMES NEW STAFF THIS MONTH

It is with great pleasure that we introduce and welcome Sareh Ebrahimi, who prefers to be called 'Lua' as our new articling student. Additionally Lisa Geer and Francesca Spagnulo have joined us litigation assistants.

http://welpartners.com/people/spagnuolo
3. FINANCIAL CONSUMER AGENCY OF CANADA ROUNDTABLE MEETING, JANUARY 30, 2019

Marian Passmore attended the roundtable meeting with the Minister of Seniors, Filomena Tassi, and the Financial Consumer Agency of Canada, including the Financial Literacy Leader, Jane Rooney, on developing a code of conduct to guide banks in their delivery of services to Canada's seniors.
 
Image reposted from Minister Tassi's twiter.
4. MONEY & FAMILY LAW, JANUARY 2019

Michael Marra's article Life Insurance as Security for Support Obligations was published in the January 2019, Issue 34-1.
5. WESTERN UNIVERSITY, JANUARY - APRIL 2019

Kimberly Whaley and Ian Hull will be co-teaching the Estates Litigation Course at Western University. Over the 10 weeks Professor Albert Oosterhoff, Mark Handelman, John Poyser, Matthew Rendely, Alexander Swabuk, Suzana Popovic-Montag and Jordan Atin will be guest lecturers.
6. PROJECT ADVISORY COMMITTEE OF THE CANADIAN CENTRE FOR ELDER LAW, FEBRUARY 8, 2019

Marian Passmore participated in a meeting of the Project Advisory Committee of the Canadian Centre for Elder Law's project on Inclusive Investing: Respecting the Rights of Vulnerable Investors through Supported Decision-Making, a research project funded by The Law Foundation of Ontario.

7. TORONTO STEP CONNECTION NEWSLETTER, FEBRUARY 2019

 
Kimberly Whaley's article 'Roach v Todd Contested Passing of Accounts: "Where Did All the Money Go?"' was published in the STEP Toronto Connection, February 2019, Vol. 6 No. 5.

8. YOUR DIGITAL UNDERTAKER EXPLORING DEATH IN THE DIGITAL AGE IN CANADA, JANUARY 2019

 
Sharon Hartung, founder & principal of 'Your Digital Undertaker' has written a book which is a must read in the digital era-especially if you are a lawyer drafting Wills!

9. WHALEY/HULL ARCHIVED WEBINAR SERIES, CLIENT CAPACITY
 
You still have time to access the Whaley/Hull Webinar fall webinar series on Client Capacity and the Lawyer's Retainer. Learn from Kimberly Whaley and Ian Hull as they present on capacity considerations as a critically important aspect of a lawyer's practice.
  • Client Capacity: A Lawyer's Retainer
  • Client Capacity and the Real Estate Lawyer's Retainer
  • Client Capacity and the Family Law Lawyer's Retainer
  • Client Capacity and the Corporate Lawyer's Retainer
To access archived webinars please visit: whaleyhullwebcasts.ca
10.  WEL ON DEPENDANTS' SUPPORT, 2019
 
Our newest publication, this time on Dependants' Support under the Succession Law Reform Act.



If you would like to receive a hard copy of our book, we invite you to contact Blossom Pangowish, Office Coordinator at blossom@welpartners.com
 
A PDF of our book can be accessed on our website: 
http://welpartners.com/resources/WEL-on-dependants-support.pdf

PART II: LAW REVIEW
(i)  WHAT IS PROPER AND ADEQUATE INTERIM SUPPORT AND HOW IS IT MEASURED?
Zavet v. Herzog, 2018 ONSC 3398 (CanLII), http://canlii.ca/t/hskb3
 
By Kimberly Whaley
 
The ruling in Zavet v Herzog,[1] involved a preliminary motion brought by the Applicant regarding her common-law partner's Estate. The Estate is still in the early stages of untangling the Deceased's personal and business affairs, which are estimated to be worth in the hundreds of millions of dollars. The litigation will likely be quite lengthy, given the complexity of the Estate.
 
In the ruling from June 15, 2018, the Court decided on a motion the Applicant was making for interim relief as a dependant. The Applicant and Deceased had been living together for at least 12 years, prior to his death. The Deceased had made no provision for the Applicant in his Wills.
 
The Estate did not contest whether the Applicant met the test of qualifying as a dependant under Part V of the Succession Law Reform Act ("SLRA"), nor was it disputed that the Applicant should receive interim support pending the adjudication of her application. The sole issue in respect of the motion for interim support was the quantum of that support. The Court had to determine what amount was necessary to ensure that the Applicant's needs were met, pending the final determination of the support claim. The Applicant, who had enjoyed a lavish lifestyle with the Deceased, sought $122,000 per month. The Court ordered that the Applicant receive $30,000 per month, net taxes, in interim dependant's support.
 
The Court, in making its decision, acknowledged that the quantum ordered was "somewhat arbitrary" but based on documented monies received by the Applicant from the Deceased during his lifetime. The Court agreed with the Estate Trustee that the amount requested by the Applicant was "unrealistic and unreliable," even though the Estate Trustee admitted, on cross-examination, that she knew nothing about the Applicant's lifestyle with the Deceased; admitting, however, that they did live lavishly.
 
Although such an amount may be outside the scope of "reality" for most individuals reviewing this case, consideration must be granted to the lavish lifestyle that the Deceased and the Applicant enjoyed prior to his death. It also provides insight into the Applicant's current situation.
 
While living, the Deceased funded every aspect of the Applicant's life with the Deceased lives, including paying for living expenses, vacations, and the Applicant's clothing and personal needs. At the Deceased's insistence, the Applicant stopped working as a real estate agent, as well as stopped renewing her real estate license. She was entirely financially dependent on the Deceased in the years leading up to his death.
 
As a result of the Deceased paying for every aspect of the Applicant's life, the Applicant now has significant liabilities, including outstanding legal fees incurred in pursuing support as a dependant of the Deceased. The Applicant has limited liquid assets, which could prejudice her ability to prosecute this case.
 
The Court took issue with the amount of interim support requested by the Applicant, noting that her budget was "...inaccurate, overstated, and unsubstantiated."[2] However, when considering the Applicant's evidence, and the fact that the Deceased paid for everything prior to his death, this statement by the Court is troubling. As the Deceased paid for every aspect of their lives, the reality was that he was the one who had access to details of the receipts, books, and records (most of which the Applicant does not have access to, given that they belong to the Estate). The Applicant did not separately maintain financial records during her long-term relationship with the Deceased.
 
From an evidentiary perspective, it can be quite difficult for an individual like the Applicant to produce sufficient and accurate records when she, herself, does not have access to these documents. The budget the Applicant provided "...may not be an accurate estimation of her needs...,"[3] but it also may not be a poor reflection of the lifestyle that the Applicant has become accustomed to.
 
With most of the records or documents being under the care of the Estate, the focus must shift to the role of the Estate, and its correlated obligation, to provide evidence to assist the Applicant in proving her case. It could be inferred that if the Estate had done so in this case, the evidence may have supported the Applicant's position that the Applicant and Deceased lived a lavish lifestyle with no limit on spending, and therefore, the amount requested by the Applicant could have been considered reasonable from the perspective of the Court.
 
The Court contemplated the Applicant's budget as being an accurate reflection of her "actual" monthly expenses. It could be argued, however, that for individuals like the Applicant, a determination of "actual" monthly expenses may not need to be considered, nor required, given the extent of the Deceased's wealth.
 
It has been well established in the jurisprudence "...that interim support motions are not intended to involve a detailed examination of the merits of the case.... These tasks are for the trial judge.... An order for interim support is the nature of a "holding order" for the purpose of maintaining the accustomed lifestyle pending trial." [4]
 
The Court must consider "...the dependant's means - current and future income, assets, and the capacity to generate them - and needs, the latter measured in light of the dependant's accustomed standard of living."[5] The Court has held, previously, that "proper support" means "...more than comfortable maintenance, and it means more than proper financial maintenance."[6] The support should allow the applicant to live a comfortable lifestyle, which, at minimum, frees her from anxiety for the future. It should not be based strictly on need. It could be argued that the Court's decision, in this case, does not exclude the Applicant from this anxiety.
 
Following a 19-year common-law relationship, the Applicant is now having to cope simultaneously with the pain and grief of losing her spouse after an extended illness; the shock of being excluded from his Estate; and the immense stress and pressure from the continuing litigation, which includes the risk that she may ultimately be forced out of her home and rendered unable to continue to live the lifestyle she shared with the Deceased for almost two decades. The Applicant should be able to enjoy the same lifestyle she was accustomed to during the relationship, at least on an interim basis, and should not be impeded or prejudiced by the Estate's delay in producing disclosure.
 
Given the Estate Trustee's position and the minimal financial disclosure that has been provided by the Estate Trustee to date, it may, unfortunately, be years before the Applicant's claims for support against the Estate can be meaningfully resolved.
 
Equitable claims such as these are inherently difficult for courts to adjudicate for so many reasons. In particular, the lack of guidance afforded to determining quantum is a problem for both court and counsel. On the relevant grounds stated under s. 63 of the SLRA[7], along with the decisions of Cummings[8] and Tataryn[9], it is clear that the court is afforded broad discretion in determining quantum. Given the outcome here and arguably the disproportionate interim award, assessing what tools a court requires to determine such claims is worthy of ongoing, continued analysis. It will be interesting from an evidentiary perspective to see what further interim awards and funding orders will be made in this estate so as to facilitate the common law spouse's interim relief. Often life style valuations addressing the factors set out under the SLRA[10] are of assistance to the court in determining quantum as was discussed by the Court in  Batchelor v Radawez [11] .


[1] Zavet v Herzog, 2018 ONSC 3398, [2018] OJ No 3203 ("Zavet v Herzog").
[2] Zavet v Herzog at para 33.
[3] Zavet v Herzog at para 33.
[4] Smeets v Seip, 2015 ONSC 3970 at paras 14, 17 and 18 (emphasis added).
[5] Perkovic v Marion Estate (2008), 57 RFL (6th) 57, 43 ETR (3d) 124 (Ont SCJ) at para 57.
[6]  Kipp v Buck Estate , [1993]OJ No 790 at paras 14 and 16, 39 ACWS (3d) 906 (Ont Ct J).
[7] Succession Law Reform Act, R.S.O. 1990, c.S.26, Sec 62(1)
[8] Cummings v. Cummings , 2004 CanLII 9339 (ON CA), http://canlii.ca/t/1g6mf
[9] Tataryn v. Tataryn Estate, [1994] 2 SCR 807, 1994 CanLII 51 (SCC), http://canlii.ca/t/1frqk
[10] Succession Law Reform Act, R.S.O. 1990, c.S.26, Sec 62(1)
[11] Batchelor v Radawez, 2015 ONSC 6764 (CanLII), http://canlii.ca/t/gmzgc
[47] Ms. Harvey is a wealth manager and investment advisor at Richardson GMP and she is a managing consultant at Touchpointe Strategies Inc. Essentially she manages clients' financial affairs which includes lifestyle analysis and financial modelling for estate and family law related issues. She was qualified as an expert in the area of financial management and strategies.
[69] Determining the proper amount of support is not an easy exercise; it is, admittedly, an imperfect one which by necessity carries with it a certain imprecision. The opinion evidence of Ms. Harvey was of assistance to the court when attempting to determine the appropriate quantum of support in the circumstances, a figure that is fair and reasonable and is not mere subsistence level. She calculated Nancy's annual expenses at the present time until 2021 to be $42,287; from 2022-2030 they will be $58,214; and from 2031 onwards they will be $53,443 on a yearly basis.
(ii)  A CAUTIONARY TALE WHEN OBJECTING TO AN APPOINTMENT OF ESTATE TRUSTEE WITH A WILL
Re: Lawrence, 2019 ONSC 373; Additional reasons, 2019 ONSC 373 (Ont. S.C.J.) http://canlii.ca/t/hx9pn
 
by Marian Passmore
 
Parties to estate litigation must be careful to not file Notices of Objection that are based on suspicions or opinions without corroborating evidence. Otherwise, they risk having costs awarded against them and findings of fact made by a judge that may make advancing separate claims more difficult.
 
The son and daughter (the "Respondents") of their deceased father, representing themselves, filed an objection to the step-mother's request for certificate of appointment as executor with a will. Respondents also commenced an action to set aside the testator's marriage and the transfer of the matrimonial home to joint tenancy, and brought a motion to consolidate their action with the estate proceeding. Respondents argued that the motion for directions should await the outcome of their separate action.
 
When the husband's first wife passed away, he withdrew from his children and spent his time on the internet and proceeded to lose much of his savings on Nigerian lonely hearts frauds. In 2012 he met his prospective wife (the Applicant) online. She was working at a daycare centre in Dubai at the time and is a Philippines national. On January 2013 the deceased went to Dubai and married her. He was 77 and she was 50. She came to Canada in 2015. He then transferred ownership of his residence from himself to his spouse in joint tenancy and executed a will naming her executrix and dividing the residue of his estate among the Applicant and the two children, 40/30/30. On March 6, 2017, at the age of 81, the father died.
 
The Court ordered that a certificate of appointment of estate trustee with a will shall issue as there was no evidence to cast doubt on the testator's ability to contract a marriage, make a will or transfer property. The children offered no evidence but just observations and opinions. While two powers of attorney in favour of his daughter were executed, they were not utilized as he was never found to be incapable despite the fact he "...preferred to spend his time indulging his fantasies with overseas fraudsmen and internet pornography." While the son thought he was delusional, the judge found it was as equally likely the deceased "simply having weak character and bad judgment".
 
The judge found that the marriage was to the mutual advantage of the testator and the Applicant. She came to Canada and took care of him for the rest of his life. He could not even manage basic housework when he was on his own. An Anglican minister performed the marriage and provided evidence that after the marriage he brightened up and seemed happier. The transfer of property and making a new will were done under the supervision of a lawyer.
 
The Respondents did not provide any evidence to support the assertions they were making and so their Notice of Objection was unsuccessful. The judge found no reason not to appoint her as executor, and found little merit to the childrens' action.
 
The judge's order included the following: that the estate pay the debt owed to TD Bank on a line of credit; that the amounts paid to TD due to delay be paid out of the Respondents' share of the estate; that the Respondents pay for the costs associated with a motion for a certificate of pending litigation they had brought and abandoned on a substantial indemnity basis; and that the Respondents pay an amount on account of increased borrowing costs incurred by the estate. The Applicant was entitled to her legal expenses from the estate. In additional reasons, the court awarded costs for the motion for directions under Rule 75.06 on a partial indemnity basis at $35,000.
 
While the father's online activity may quite well have been the result of bad judgement and weak character, it is also possible that it was an early sign of diminished mental capacity. However, such behaviour is unlikely to support claims of lack of capacity to marry or dispose of property if not substantiated by other evidence. These disputes continue to make their way before our courts and present difficulties from an evidentiary perspective.
(iii)  LEGAL CAPACITY IN FAMILY LAW LITIGATION
Kirby v. Kirby, 2019 ONSC 232 (CanLII), http://canlii.ca/t/hwwzs

By Michael J. Marra
 
When is the legal capacity of a party in family law litigation considered? In Kirby v. Kirby, 2019 ONSC 232 Justice Conlan rendered his ruling on costs following a ten day matrimonial trial over which he presided. In the costs decision Justice Conlan noted the following:
 
[ 1 ] It is 2019, and Ian and Katherine Kirby, after 17 years, have a Final Order in their marathon matrimonial struggle.
 
[ 3 ] The trial, more like a sentence than a sojourn, lasted ten days.  Katherine acted for herself, and she is responsible for much of the prolongation of the hearing.
 
[ 11 ] In the end, neither party was wholly successful after trial.  Success was divided, but it can safely be said that Ian was more successful than Katherine.
 
[ 12 ] As to which party is more deserving of costs, there is no doubt that it is Ian. 
 
[ 13 ] The proliferation of self-represented litigants in family law cases is here to stay.  I suspect that there are many reasons for that: cuts to legal aid services, the self-help resorted to on the world wide web, and (let us not be so na├»ve to ignore) the voluntary choice by some litigants to act for themselves because they think that the judge will be forced into being their advocate.

[ 14 ] With respect to the latter category of self-represented litigants, it is time that we recognize that there are some (not most, maybe even not many) persons who can readily afford legal counsel but simply choose to act for themselves because they think that it will provide them a tactical edge in the courtroom.  It will cause the presiding judicial official to go overboard with assistance, not just procedurally but substantively, or so goes the rationale.

[ 15 ] There is nothing wrong with self-representation.  What is wrong, though, is hijacking the proceeding at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs.

[ 16 ] We do not have two sets of rules and principles for costs in family litigation - one for those who hire lawyers and one for those who act for themselves. 

[ 22 ] I find that Ian is certainly entitled to some costs.  Overall, he was more successful after trial than Katherine was.  Further, he made greater efforts than Katherine did to settle the case without having to endure a trial.  And, finally, compared to Katherine, he was better prepared for and behaved much more admirably during the trial.

[ 24 ] From 2016 onwards, Ian's actual costs total $190,438.63.  Nine Court attendances occurred between the spring of 2017 and September 2018, before the trial started.  During that time frame, Katherine was very difficult to deal with.  Unreasonably so.  For example, despite her claim that she was essentially destitute, she fought tooth and nail the sale of the Oakville home.

[ 25 ] Katherine's unreasonableness continued during the trial itself.  For example, she made wild allegations, for the first time, of being raped by Ian.  She failed, without reasonable excuse, to comply with a prior Court Order made by Justice Miller regarding the delivery of expert reports.  She single-handedly caused the hearing to be significantly longer than it should have been.

[ 27 ] Whether susceptible to being pigeon-holed as "bad faith" or not, so as to attract Rule 24(8), the conduct of Katherine over the last two years or so is worthy of serious condemnation by this Court.  Awarding to Ian every cent of the $190,438.63 is in the cards.

[ 28 ] My only trepidation in doing so is that Katherine is, indeed, mentally ill.  Her family physician's evidence at trial confirms that.  I am not sure how much of Katherine's unreasonableness is due to her psychological issues.  I am prepared to accept that some of it must be.  (emphasis added).

[ 29 ] Hence, rather than full recovery of costs from 2016 to date, I have decided to reduce the $190,438.63 to $150,000.00 even.  The end result is enhanced substantial indemnity recovery for that time period (about 78%).

How on earth could litigation of this magnitude be conducted without consideration of a Litigation Guardian for Katherine?

Surely this is not a function of self-representation. In this case I expect that the self-representation was a function of the mental health challenges. It is very difficult for family law counsel to secure instructions and marshal evidence effectively in these situations.

Too often a client with significant mental health conditions is viewed as difficult, primarily as a result of the circumstances surrounding the separation. When should the family law lawyer consider the client's capacity to provide instructions?   When should the Court?

The trial decision Kirby v. Kirby, 2018 ONSC 6958 broaches the issue based on the evidence of Katherine's physician ("Pandke") who testified at the trial:
 
[37 ] In her oral testimony, Pandke confirmed that Katherine suffers from panic attacks and depression.  She has a long history of chronic pain, and that pain is linked to her mental health difficulties.  She has been prescribed anti-psychotic medication.  Her age is certainly not an aid to recovery.  The litigation and the Court proceedings are likely a cause of Katherine's further mental health deterioration in 2017 and 2018.  For her own interests, according to Pandke, this case must come to an end.

[ 38 ] Pandke testified that she has not seen any sign that Katherine is malingering.  Although Pandke cannot say for certain that Katherine is medically unfit to work, without completing a formal psychiatric evaluation of her (which process has started), Pandke did testify that Katherine's mental health is very unstable and certainly would adversely affect her ability to work.

[ 39 ] Pandke has made a recent referral of Katherine to The Centre for Addiction and Mental Health.

[ 40 ] As of now, no determination has been made that Katherine is permanently disabled.  Nor has Pandke ever thought that Katherine is incapable of making decisions such that The Office of the Public Guardian and Trustee ought to be involved.

The Court viewed the evidence presented regarding Katherine's medical and mental health from the perspective of her capacity to earn an income for the purposes of determining her entitlement to spousal support:
 
[ 73 ] Frankly, I had the opportunity to observe Katherine closely for ten days of trial.  The person that I saw is not capable of working any job.  Nobody would hire her.
 
[ 77 ] With her myriad of physical health problems, her emotional fragility, her recent hospitalization after a total mental breakdown and suspected suicide attempt, and her current inability to work in any capacity, notwithstanding her sizeable inheritances received in recent years, I find that Katherine remains entitled to spousal support on a need basis.
 
In my experience, litigants in the family justice system are often struggling emotionally. Oftentimes those litigants are self-representing and challenging for counsel to deal with. Rarely however is legal capacity and the appointment of a Litigation Guardian considered. I suspect that failure stems from the fact that the party under disability does not raise the issue and does not put the issue before the court.
 
The issue was canvassed at length in 2018 in Granasiuk v. Granasiuk, 2018 ONSC 2904. Again a protracted history of litigation (12 years) came before the Court by way of an uncontested trial after the mother's pleadings had been struck. In the father's materials there was medical evidence that confirmed the mother's serious mental illness. Justice Kurz noted that none of the many judge's previously involved in the file referenced her intellectual and psychiatric status.
 
Family litigation in Ontario is primarily an adversarial evidence based process. If a litigant does not raise an issue or put evidence before the court the judge is not in all likelihood going to address the issue.

On his own volition, Justice Kurz questioned the capacity of the mother and referenced the Substitute Decisions Act and the test for the appointment of a litigation guardian:

In Costantino v. Costantino, [2016] O.J. No. 59 (SCJ), a family law case, Price J. elaborated on the test for the appointment of a litigation guardian. He stated:

[41]  For the appointment of a Litigation Guardian to be appropriate, the cause of incapacity must stem from a source of mental incapacity, such as mental illness, dementia, developmental delay, or physical injury, and not from a non-legal capacity-related reason, such as lack of sophistication, education, or cultural differences.13 Additionally, the incapacity, so caused, must affect the litigant's decision-making in relation to the issues in the litigation.
 
[emphasis included in original]          
 
In Huang v. Pan, [2016] O.J. No. 5238 (SCJ), T.L. Archibald J. explored the purpose for appointing a litigation guardian as follows:

[16]  The purpose of requiring a litigation guardian has been eloquently set out by Master Robert Beaudoin (as he then was) at paragraph 4 of Cameron v. Louden, 81 ACWS (3d) 32, [1998] O.J. No 2791 (Gen Div):
 
The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties and the Court itself. The rule offers protection to the party ensuring that a competent person with a duty to act for the party's benefit is there to instruct counsel and take steps in the litigation on the party's behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to be conducted, is responsible for costs and is responsible for seeing that the court's eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.

[17]  Litigation guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.

As a result, Justice Kurz requested the involvement of the PGT and adjourned the  uncontested  trial.     

Clearly procedural safeguards are required in the family justice system to ensure the early flagging of files with mental health concerns in order to consider the involvement of the PGT. This should be routine at the early conferencing stages of the court proceeding in the same way that the Office of the Children's Lawyer is considered regarding parenting issues.
(iv)  DETERMINING THE APPROPRIATE LOCATION TO COMMENCE POWER OF ATTORNEY LITIGATION
By Kimberly Whaley
 
Litigating a dispute over the validity of power attorney documents may involve family members who live in multiple cities in Ontario. Parties may disagree on where the application should be brought. Or, an application may be commenced in one jurisdiction, but a party wants the application to be moved. What steps do they have to take and what will the court consider in making this decision?
 
The recent decision of Comeau v DeCoff 2019 ONSC 874 (CanLII), http://canlii.ca/t/hxc67 looks at this particular issue of venue. The plaintiff (the daughter of the defendant) commenced an application in Oshawa seeking a declaration that her father be declared incapable of managing his affairs and sought to set aside any power of attorney documents granted by her father after the one he signed appointing her as his attorney.

The father's most recent POA documents appointed one of his sons, Wayne, as his attorney. The daughter and another son, Bruce, became concerned about what they termed, "suspicious banking transactions" on their father's account. The father was assessed on November 24, 2018 and was found to be incapable of managing his personal care and his property. However, he was assessed again on December 21, 2018 by a different capacity assessor and was found to be "capable" of both.
 
The father brought his own application in Windsor for an order upholding the latest POA and sought a declaration that he "is capable of managing his own affairs". [1]
 
The daughter lived in Lindsay, but her lawyer practiced in Oshawa. The father lived much of his life in Whitby but moved to Windsor to reside with his son Wayne. The other son, Bruce, lived sixty minutes north of Oshawa.

The father brought a motion to move the daughter's application from Oshawa to Windsor where he resided. The Court turned to Rule 13.1.02(b) of the Rules of Civil Procedure (Motion to Transfer to Another County) which states:
 
. . .the court may, on any party's motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or

(b) that a transfer is desirable in the interest of justice, having regard to,

(i) where a substantial part of the events or omissions that gave rise to the claim occurred,

(ii) where a substantial part of the damages were sustained,

(iii) where the subject-matter of the proceeding is or was located,

(iv) any local community's interest in the subject-matter of the proceeding,

(v) the convenience of the parties, the witnesses and the court,

(vi) whether there are counterclaims, crossclaims, or third subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,

(viii) whether judges and court facilities are available at the other county, and

(ix) any other relevant matter.  O. Reg. 14/04, s. 10.
 
Justice Thomas noted that: "While the factors under Rule 13.1.02(b) are not easily adaptable to this proceeding, I find that the factors listed in Rule 13.1.02(2)(b)(i)-(iii) could be seen to refer to the location where [the father] resides and where the capacity assessments were undertaken thereby favouring a transfer to Windsor."  [2]
 
Justice Thomas also took into consideration where the capacity assessors resided: "Factor (v) must take into account that the [first] assessor. . . resides in London, much closer to Windsor than Oshawa. The [second] assessor. . . resides in Windsor."
 
Ultimately, it appears that Justice Thomas placed the most weight on the father's age and his needs:
 
Most importantly to me [the father] is 81 years of age. He is prescribed multiple medications to assist him with his ailments. He has sworn an affidavit in this motion which speaks of the hardship that would be visited on him if he had to travel to Oshawa to attend court there.

The Court could determine this litigation in Oshawa or Windsor. I believe it relevant as well that this Application is in an early stage of litigation and that there is an Application seeking similar relief issued in Windsor. It would seem appropriate and cost effective to have the two applications proceed together. [3]
 
While an applicant should be able to name the place of a trial, sometimes there may be another more appropriate jurisdiction depending on the facts of the particular case.
 
This is indeed an issue that comes up frequently on client matters and the outcome is difficult to predict


[1] Comeau v DeCoff 2019 ONSC 874 at para 11.
[2] Comeau v DeCoff 2019 ONSC 874 at para 13.
[3] Comeau v DeCoff 2019 ONSC 874 at paras 15-16.
(v)  DETERMINING THE SUBSTITUTE DECISION MAKER OF AN INCAPABLE PERSON
Crane v Metzger, 2018 ONSC 5382 (CanLII), http://canlii.ca/t/hv2vl

By Kimberly Whaley
 
The case of Crane v Metzger, 2018 ONSC 5382 (CanLII), http://canlii.ca/t/hv2vl involved a dispute over who should be the substitute decision maker of an elderly woman who was found to be incapable to make decisions with respect to both her property and her personal care. The dispute was between the woman's daughter and the woman's brother.
 
The daughter sought to have her uncle removed as her mother's attorney under a continuing power of attorney for property. The daughter wished to be appointed as her mother's sole permanent guardian of the property and of the person. The mother was 84 years old with vascular dementia. Both parties agreed, after capacity assessments were conducted, that the mother was incapable of making decisions with respect to both her property and her personal care. Her assets were valued at approximately $700,000.00 and she was living in a long-term care facility.
 
The daughter advanced a lengthy list of grievances against her uncle, including that the uncle was mishandling her mother's finances, care, and was not acting in her mother's best interests. The daughter also asserted that the mother's current long-term care home was "sub-standard" and did not suit her advanced needs.
 
The uncle alleged that the daughter had behaved recklessly with regard to her mother's care, viewed her mother's assets as her own, and that he was a prudent manager of his sister's property and personal care. Further, the uncle advised the court of one particular incident when the daughter lied to him and took her mother to Seattle when the daughter told him she was taking her to Wasaga Beach. The mother did not have proper travel medical insurance at the time. The daughter had also secured a passport for her mother under false pretenses.
 
The court found, based on the evidentiary record, that the daughter had taken her mother to the bank to withdraw funds from her account while knowing that she was incapable of doing so. When the withdrawals were brought to the attention of the bank, "the bank agreed that they were at fault for allowing the withdrawal by [the daughter] and [the mother]".[1] More than $10,000.00 was returned to the account by the bank. The court concluded that the daughter "cannot be trusted to deal with the financial welfare of [her mother]". [2]
 
With respect to the uncle's actions, the court found that "the record discloses that [the uncle] is doing the best he can in the circumstances" and that the daughter "failed to provide strong and compelling evidence of misconduct or neglect on the part of the attorney or that the best interests of [her mother] required the removal of [the uncle] as her attorney."[3] The motion was dismissed.
 
This decision reinforces the burden that must be met when seeking to remove an attorney, as previously set out in the case Teffer v Schaeffers 2008 CanLII 46929 (ON SC), http://canlii.ca/t/20rvl


[2] Crane v Metzger 2018 ONSC 5382 at para 37.
[3] Crane v Metzger 2018 ONSC 5382 at para 44.

PART III: UPCOMING EVENTS
Whaley/Hull Archived Webinar Series
Please click here to access more information or to purchase each program https://whaleyhullwebcasts.ca 
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
February 15, 2019
Speaker: Michael Marra and Daniel Paperny
 
Osgoode Professional Development
2019 Elder Law - Marriage Contracts; conflicts in Blended Families: Sibling Struggles, Predatory Marriages and Family Meetings
February 26, 2019
Speaker: Kimberly Whaley
Moderator: Professor Albert Oosterhoff
 
Osgoode Professional Development
Powers of Attorney and Guardianship: Non-contentious and Contentious Matters
April 9, 2019
Speaker: Kimberly Whaley
 
Cambridge Forum, Estate Planning and Litigation Forum
Elder Abuse - Civil and Criminal Remedies
Speaker: Kimberly Whaley
April 14-16, 2019
 
Osgoode Professional Development
Passing of Fiduciary Accounts
April 30, 2019
Chair: Kimberly Whaley
Speakers: Ian Hull, Professor Albert Oosterhoff and Tracey Phinnemore, Heather Hogan and Katherine Antonacopoulos
 
STEP Premier Sponsorship Education Session
Short Case Study Presentation
May 22, 2019
Presenter: Bryan Gilmartin
 
B'NAI BRITH CANADA
June 4, 2019
Moderator: Kimberly Whaley

OBA and Toronto Public Library Law in the Library
June 6, 2019
Speaker: Matthew Rendely

OBA and Toronto Public Library Law in the Library

June 27, 2019
Speaker: Marian Passmore
 
GTA Accountants and GTA Finance Network
Elder Abuse
October 1, 2019
Speaker: Kimberly Whaley
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 1, 2019
Speaker: Matthew Rendely
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 6, 2019
Speaker: Alex Swabuk

PART IV: RECENT BLOG POSTS
Davey v Craig: Court Dismisses Matrimonial Claim Disguised as an Estate Claim

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Charles v Junior And Estate: Interim Support and the Importance of Financial Disclosure

Does a Person's Death  Alter Ontario's 2 Year Limitation Period?

SCC confirms Doctrine of Remedial Constructive Trust

What a Sham! - McGoey (Re)

A Long Awaited Sigh of Relief - Re Milne Estate

Video: Canadian Lawyer Magazine: Top Ten Wills, Trusts and Estates Boutiques

CBC Go Public - Senior Loses $732,000 in Romance Scam

Does Filing a Notice of Objection Preserve One's Claim in a Will Challenge?

Is a Notice of Objection to Estate Accounts Subject to Limitations?

Feldman v. Foulidis: Confirmation of the test to obtain a Certificate of Pending Litigation

Beaver v. Hill: The Role of Counsel and the Judiciary is Front and Centre

PART V: CONNECT WITH WEL
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