WEL Newsletter, Vol.8 No.3, June 2018

WEL Partners helps clients navigate dispute resolution throughout Ontario. We hope you enjoy our newsletter.

Matthew Rendely joined our firm on June 18, 2018. Matthew's contact details can be accessed on our website at: http://welpartners.com/people/rendely

Kimberly moderated the session: "Medical-Legal Issues Involving Capacity, Estate and Trust Planning, and Litigation" with panelists: Dr. Adrian Owen, Dr. Kenneth Shulman, and Ed Esposto on May 29, 2018.
Kimberly also presented her article co-written with Kate Stephens on: "A Lawyer's Duties and Obligations Where Capacity, Undue Influence, and Vulnerability are at Issue in a Retainer".
Albert Oosterhoff and John Poyser along with Nancy Golding and Charles Wagner, were panelists in the session on: "Predatory Marriages & Powers of Attorney for Property and Personal Care: The Good, the Bad, and the Ugly" on May 29, 2018, which was moderated by Corina Weigl.


Kimberly chaired the panel discussion session on: "Estate, Family and Tax Issues in Mediation" with panelists, Sharon Stone, FLA Lawyer, Charles Ticker - The Mediator`s Strategy in Estate Litigation, and Caroline Abela - Domestic Contracts in SLRA Applications.
Kimberly and Alex Swabuk co-wrote the paper: "Family Law for the Dead: Spousal Claims against Estates" for the B'Nai Brith Seminar. 

WEL Partners joined Scotiabank's "Cardio is Hardio" team on June 14th for the 5k 2018 Scotiabank Rat Race for United Way. Together they raised $1,245.00 for United Way. 


Kimberly's and Albert Oosterhoff's article "Predatory Marriages" was published in the Advocates' Quarterly, Volume 48, Issue 3, June 2018.

Kimberly A. Whaley & Ian M. Hull jointly present a LIVE WEBINAR SERIES this fall.  REGISTRATION IS NOW OPEN.

Capacity considerations are a critically important aspect of a lawyer's practice, given our emerging social and demographic populations. This valuable live webcast will help you understand a lawyer's obligation, the rules upon which a lawyer's conduct will be examined, how to reconcile legislative and common law precedent, the legal abilities of attorneys and guardians, limitations on their powers, and the role of assessors and assessments. Join Ian Hull and Kimberly Whaley as they address the importance of capacity considerations in a lawyer's retainer.

Client Capacity in a Legal Retainer - SEPTEMBER 26

Client Capacity: A Corporate Lawyer's Retainer - OCTOBER 24

Client Capacity: A Real Estate Lawyer's Retainer -  NOVEMBER 28

Client Capacity: A Family Lawyer's Retainer  - DECEMBER 5

4:45 - 6:00 pm Live Webcast

$75 + HST per session

This program qualifies for 0.5 Professionalism Hours and up to 0.75 Substantive Hours of CPD.

More information and registration at: whaleyhullwebcasts.ca

by Kimberly A. Whaley

Dunn v. TD Waterhouse [1]  2018 ONSC 2776 (CanLII), http://canlii.ca/t/hrvsr
Ridley Estate v. Eagan [2]  2018 ONSC 2777 (CanLII), http://canlii.ca/t/hrvss
These matters arise from the wrongdoings of Conrad Eagan, a former financial advisor, who managed to defraud his elderly clients of over $3 million. Eagan's activities led to an investigation and disciplinary hearing by the Mutual Fund Dealers Association of Canada ("MFDA") as well as various criminal charges. He pled guilty to fraud charges related to a number of victims and was sentenced to 4.5 years of penitentiary time and a series of "free-standing restitution orders" pursuant to section 738 of the Criminal Code, R.S.C. 1985, c. C-46. [3]

Two related decisions were recently released dealing with the fallout of Eagan's fraud. The subject application and motion were brought by the estates of two of Eagan's victims, Joan Kidd ("Dunn" action) and Joan Ridley ("Simpson" action).
Joan Kidd:
The MFDA's investigations found that Eagan misappropriated approximately $610,000 from the bank account of Joan Kidd, and at least $235,000 of the proceeds from the sale of the deceased's residence. They were also able to trace some of the funds ($353,676.85) to Eagan's TD Waterhouse trading account.
On the basis of this finding, the applicants commenced this proceeding in June 2015. They requested a single term of substantive relief: an order that TD Waterhouse pay to the applicants the sum of $137,397.87. There was also a restitution order in favour of the Kidd Estate in the amount of $130,643.15.
However, achieving finality proved difficult given the number of victims and the number of proceedings commenced on the victims' behalf. What was the best way to provide restitution to all of the victims?
In August 2015, Justice Sheard made an Order with respect to the monies remaining in Eagan's TD Waterhouse trading account (the "Order"). TD Waterhouse was ordered to liquidate the securities in that account and pay the sum realized into court. At the time, it was anticipated that the sum to be paid into court would be $451,355.29.
The Order further provided that from the sum realized, the applicants would be paid $353,676.85. Payment, however, was contingent upon complying with the following provision which sought to protect other victims who may seek recourse as against the funds:
This Court orders that the monies paid into court shall be held pending further order of the Court, to be paid out upon notice to the parties and without prejudice to the claims of any non-parties who may be entitled to assert a claim against these monies. [emphasis added]
Joan Ridley:
Joan Ridley was another one of Eagan's victims. The MFDA panel made a finding that Eagan misappropriated approximately $1,632,200 from Joan Ridley prior to her death. Eagan's criminal convictions also led to a restitution order made in favour of the Ridley Estate for the sum of $1,632,200. The executor for the Ridley Estate sought payment of $314,157.42 plus interest.
The parties in the two matters (the Kidd Estate and Ridley Estate) reached an agreement that the Ridley Estate receive the sum of $314,157.42, plus any interest earned on the monies paid into court. Before payment could be made the Court had to be satisfied, as per the Order, that there were no non-parties who may be entitled to assert a claim against the funds.

More Victims...

The parties' further efforts revealed the existence of two other applications to the Court for payment of funds. The Plaintiffs in these actions were represented by the same counsel. Final orders with respect to their applications were made in 2013 and 2014. Their counsel was notified of the within matters but neither party made any attempt to participate.

The only other non-party action identified was one commenced in 2016, under the Class Proceedings Act[4] by "Rodney Sabourin, through his Litigation Guardian David Sabourin". This action named Eagan and various other Defendants but not TD Waterhouse.

The plaintiff in the Sabourin action was served with copies of the relevant materials in these proceedings.   In response, the Plaintiff filed materials and attended to make submissions.

The Court ultimately found that there were no non-parties entitled to payment out of Court based on three factors:
  1. TD Waterhouse was not named as a Defendant in the Sabourin action and any claim as against TD Waterhouse, at this time, would be faced with potential limitation period defences. There was also no evidence before the Court of any intention on the part of the nominal Plaintiff or potential class members to initiate a claim against TD Waterhouse. 
    Furthermore, there is no evidence that the nominal Plaintiff or class members have a claim against TD Waterhouse. The MFDA had not identified Sabourin as one of the five individuals whose funds were transferred by Eagan into his TD Waterhouse account. The individuals identified were Joan Ridley, Joan Kidd, the two other claimants who had failed to respond to this motion and an individual named "PL" who purportedly died in 1998.
  2. The focus of the nominal plaintiff in the Sabourin action was the restitution order made against Eagan at the time of sentencing in the criminal proceeding. The existence of the restitution orders, made only against Eagan personally, was found to be irrelevant to the entitlement of the applicants to monies paid into court pursuant to the Order. The monies paid into court had never been Eagan's personally.   There was no evidence before the Court of the nominal Plaintiff or the potential members of the class having taken any steps to make the restitution order(s) a judgment in this court. Section 738 of the Criminal Code provides for such steps to be taken.

  3. As a matter of fairness to the applicants who had now complied with the provisions of Justice Sheard's Order as well as the endorsements made by this Court.
Justice Corthorn went on to acknowledge the significant losses suffered by both the Ridley and Kidd Estates and the fact that the end result here was not a full recovery but a move towards closure.
These cases are clear examples of the extensive negative impact fraudsters can have on elderly victims. Enormous efforts, extensive legal fees, and years of litigation that exceeded the lives of the victims themselves was a result of one individual's criminal actions.

[1]  Dunn v. TD Waterhouse, 2018 ONSC 2776,  (CanLII), http://canlii.ca/t/hrvsr
[2]  Ridley Estate v. Eagan, 2018 ONSC 2777 http://canlii.ca/t/hrvss
[3]  Dunn at para. 3
[4]  Class Proceedings Act , 1992, S.O. 1992, c. 6
by Kimberly Whaley

Koster v. Koster, 2018 ONSC 2321 (CanLII), http://canlii.ca/t/hrqqz

This was a summary judgment motion by a testator's widow and estate trustee for dismissal of an application brought by the testator's various nieces and nephews, raising allegations of undue influence and suspicious circumstances.
The testator died at the age of 94. His latest Will left the bulk of his estate to his second wife (the respondent, who was 17 years his junior) and named her his estate trustee. The applicants challenged the validity of the various Wills made in the three years before the testator's death and during his marriage to the respondent.
The respondent brought this summary judgment motion, seeking to dismiss the application. There was various affidavit evidence put forth in support of the motion including an affidavit from the testator's family physician of 40 years, the lawyer who assisted in preparing the various Wills, the testator's chiropractor and long-time friend, as well as his accountant.
The applicants, however, presented contradicting evidence which supported the existence of a triable issue.   Given the conflicting evidence presented, the court was not prepared to dismiss the matter summarily. Deciding the issue of undue influence and suspicious circumstances would have required live testimony and cross-examination of all witnesses. Hence there would be no significant savings of time or expense if the motion was simply adjourned to obtain this oral evidence, compared to proceeding to trial.
The testator and the respondent were involved in an extramarital affair during his 62-year marriage to his first wife. They had a child together as a result of this affair.
The testator's wife died in 2006. There were no children from that marriage. The respondent visited the testator after the death of his wife and their relationship eventually led to a sudden unannounced civil marriage in February of 2011. They also had a religious ceremony in 2013 with their son present.
The testator had a prior Will prepared which left the majority of his estate to his nieces and nephews, which was revoked upon his marriage to the respondent. Between February 2011 and October 4, 2012, the testator made 4 new Wills. The last Will signed on October 4, 2012, left $20,000.00 for each of the testator's nieces and nephews. The balance of the estate under both his primary and secondary Wills of October 4, 2012, went to his son with the respondent, after the life interest to the respondent, in the residue with her ability to encroach on the capital.
The respondent presented evidence suggesting that she married the testator at his insistence. That he was mentally competent throughout their relationship and that she had absolutely no involvement in the preparation of the various Wills.  
As to why the testator had suddenly decided to disinherit his nieces and nephews, the respondent claimed that the testator was unhappy about the lack of effort the family members made to keep in contact with him. She claimed that they hardly ever called him and that most of them failed to attend a 90th birthday celebration party that she had arranged for him. Her evidence was that she did not discourage or interfere with their relationship.
The applicants, on the other hand, presented evidence claiming that the respondent pressured the testator into getting married and that the testator had on many occasions indicated that he had no intention of marrying her. However, they did not contest the validity of the marriage.
They claimed that they had all enjoyed a close relationship with the testator prior to the respondent moving in with him.   The evidence was that the respondent cloistered the testator, intercepted their calls, and prevented them from having a relationship with him.
There was also some conflicting evidence presented regarding the testator's cognitive functioning at the time the Wills were prepared. There were some emergency hospital records which suggested that the testator had a history significant for dementia. The applicants also deposed that the testator's alcohol consumption had increased since he began residing with the respondent.
The evidence from the testator's lawyer suggested that he had the testator's family physician conduct a capacity assessment because the testator had expressed concerns that his nieces and nephews may challenge the Will.   However, there was no direct evidence that a full mental capacity assessment took place. Although the testator's family physician had provided his opinion indicating the testator was capable, there was no notation indicating that he had assessed the testator.
The respondent's evidence indicated that she had no involvement with the preparation of the Wills. However, there was evidence indicating that the testator provided his lawyer with typed instructions for the Will. According to the applicants the testator had minimal typing skills and did not like to type, which raised the possibility of the respondent's involvement.
The applicants raised two triable issues, undue influence and suspicious circumstances. If this matter were to proceed to trial they would have the high burden of establishing those claims on a balance of probabilities. In accordance with Trotter Estate, 2014 ONCA 841 at paras. 58 and 59, circumstantial evidence can be used to discharge this burden.

T he Court in its analysis reviewed the indicators of possible undue influence as set out in Gironda v. Gironda, 2013 ONSC 4133 and situations that may give rise to suspicious circumstances set out in Vout v. Hay [1995] 2 SCR 876.
The evidence presented by the applicants, if accepted, raised some potentially significant confirmation of the testator's dependency on the respondent for emotional and physical needs, as well as evidence of her socially isolating and cloistering him; all of which are potential indicators of undue influence.
As noted above, given the contradictory evidence presented, the Court was not prepared to grant summary Judgment, however the Court set the matter down for an expedited trial to take place the week of June 18, 2018.

Courts may not be inclined to summarily dismiss claims where contradictory evidence is presented with respect to contentious issues raised, such as undue influence and suspicious circumstances in the context of estates, and testimony of multiple witnesses would be required to determine those issues.


International Federal on Aging (IFA) 14th Global Conference on Ageing
August 7 - 10, 2018
Master Class - Concepts of Ageism: Arguments in favour of the need for protections
Kimberly Whaley, Andrea McEwan & Erin Cowling
Elder Law and the Indian Act: Issues with Federal Oversight of First Nations Wills, Estates, and Guardianship in Canada
Presenters: Matthew Rendely, Arieh Bloom and Kate Stephens
LSUC - Administration of Estates and Probate Essentials
September 21, 2018
Chairs: Kimberly Whaley and Tim Grieve
WEL/Hull Webinar Series
Client Capacity in a Legal Retainer
September 26, 2018 - Info and registration

Client Capacity: A Corporate Lawyer's Retainer
October 24, 2018 - Info and registration

Client Capacity: A Real Estate Lawyer's Retainer
November 28, 2018 - Info and registration

Client Capacity: A Family Lawyer's Retainer
December 5, 2018 - Info and registration
Live Webcast presented by Ian Hull and Kimberly Whaley
4:45PM - 6:00PM (ET)
$75 + HST per session
This program qualifies for 0.5 Professionalism Hours and up to 0.75 Substantive Hours of CPD.

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
September 28, 2018    
Speakers: Andrea McEwan and Amanda Bettencourt
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 2, 2018        
Speakers: Kimberly Whaley and Alex Swabuk

Determining Whether Reconciliation Occurred Prior to Husband's Death: Candow v. Candow Estate

Third-parties are free to act within the confines of their mandate without fear of facing liability for costs - Eustice v Eustice

IFA 2018 | 14th Global Conference on Ageing: Aug 7-10 Toronto

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