WEL Newsletter, Vol.8 No.7, October 2018

Whaley Estate Litigation Partners helps clients navigate dispute resolution throughout Ontario. We hope you enjoy our newsletter.



Kimberly Whaley co-chaired with Tim Grieve of Merovitz Potechin LLP, at the Law Society of Ontario's Administration of Estates and Probate Essentials on September 21, 2018
Please click on this link to access the program details page: https://store.lso.ca/practice-gems-administration-of-estates-2018


Alexander Swabuk was invited by Amy Clark, Media Relations & Communications Manager, to present on "Financial Elder Abuse" at the Toronto Public Library - Don Mills Branch, organized by the Ontario Bar Association. Alexander focused his presentation on the importance of elder abuse awareness as well as how to prevent future litigation and associated costs through the use of power of attorney documents and proper Will planning.


Kimberly Whaley and Ian Hull presented the 1st of 4 Whaley/Hull Webinar series on Client Capacity: A Lawyers' Retainer on September 26, 2018. The next program is on October 24th, 2018
Please click on this link to register for the archived program. https://whaleyhullwebcasts.ca/?page_id=72


Amanda Bettencourt and Matthew Rendely spoke at the Toronto Police Services Seminar on Civil and Criminal Remedies, Elder Abuse on September 28, 2018
Kimberly Whaley was one of 5 panelists on the Toronto Public Health Vulnerable Adults & Seniors Forum on Preventing Elder Abuse: Everyone Has a Role which was held on September 28, 2018 at the North York Civic Centre. The discussion was about system responses and resources relating to elder abuse. The keynote speaker was Dr. Samir Sinha, Director of Geriatrics, Mount Sinai Hospital, Provincial Lead, Ontario's Senior Strategy. The other panelists were Rochella Vassell, Elder Abuse Ontario, Zoltan Fekete, OPGT Lisa Haarink, OPGT and Jason Peddle, Toronto Police Service.

Front Row: Katie Dilworth (Toronto Public Health), Rochella Vassell (Elder Abuse Ontario), Omolayo Idowu (Toronto Public Health), Kimberly Whaley (WEL Partners)
Back Row: Carol Timmings (Toronto Public Health), Lisa Haarink (Office of the Public Guardian and Trustee), Jason Peddle (Toronto Police Service), Dr. Samir Sinha (Sinai Health System), Zolton Fekete (Office of the Public Guardian and Trustee).


Kimberly Whaley and Alex Swabuk spoke at the Oshawa Community Credit Union, Elder Abuse and Power of Attorney Seminar on October 2, 2018


Kimberly Whaley attended the CARP stakeholder meeting for the launch of their new policy platform: The FACES of Canada's Seniors. The meeting was held on Tuesday, October 9, 2018
Please click here to view the CARP website http://www.carp.ca/


Kimberly Whaley spoke at the Law Society of Ontario Estates and Trusts Summit Litigation Day One. She presented her article on Undue Influence in Inter Vivos Transactions and transfers on October 10, 2018
Please click on the link to access the program details page: https://store.lso.ca/21st-annual-estates-and-trusts-summit-day-one
WEL's case of  Seguin (now Porter) et al. v. Pearson argued by John Poyser and Amanda Bettencourt  was upheld on appeal and reported in the October 19 Ontario Reports.

WEL's case of 
Aquilina v. Aquilina et al. 
was reported in the October 12 Ontario Reports.

The deceased died intestate leaving his wife of almost 47 years (the Applicant) and 3 adult children.  The deceased's estate was not a simple one to administer.  He had a number of business interests including out of the jurisdiction in Malta and assets held in various corporations that the Applicant was only beginning to obtain information on. There was an active business in Malta as well.

The Applicant's level of information regarding the family's financial affairs was imprecise.  The Applicant wanted to preserve her right to elect under the Succession Law Reform Act ("SLRA") and/or elect to have her property rights determined under the Family Law Act ("FLA") equalization regime.  The Applicant has a period of six months to make such election.

The Applicant brought an application for extension in May of 2018, just short of six months after the deceased's death. The Applicant requested that the court: (1) extend the time to make an election until 2 years from the date of the application; (2) extend the time for the deemed election to the same date; and (3) extend the time during which distributions from the estate are suspended to the same date.

This is normally a straight forward often sought type of order and in this instance requested on consent of all of the intestate heirs.

The Court's analysis:
Dunphy J. looked at the 3-part test that must be satisfied for an extension to be granted, as set out in s 2(8) of the FLA:

(1) Are there apparent grounds for relief?
(2) Has the delay been incurred in good faith?
(3) Will anyone be substantially prejudiced by the delay?
Dunphy J. found that there were grounds for the relief sought and considered the provisions of the FLA and the SLRA as well as the circumstances and timing of the request and granted the Applicant all the relief sought, but reduced it to only one year, without prejudice to the availability to seek a further extension.


Have you registered yet? REGISTER NOW!

Kimberly A. Whaley & Ian M. Hull jointly present a LIVE WEBINAR SERIES.

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.
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 Michael Marra
In two recent decisions the Supreme Court of Ontario has commented on the approach of counsel in the conduct of litigation.
Kearney v. Hill, 2017 ONSC 6306; 139 O.R. (3d) 786 
In Kearney v. Hill Justice Monahan was required to determine entitlement to costs in an action that had been settled in mediation. The parties agreed to have the costs issue determined by the Court.
The Plaintiff ("Mary Jr.") had spent $270,000 in fees and disbursements while the Defendant ("Carol") had spent $150,000. The total value of the estate including the house was approximately $800,000.
Mary Jr. and Carol were sisters. Their father passed away in April 2014 at the age of 89. In July 2013, their mother, Mary Sr. executed Powers of Attorney for Personal Care and Property which appointed Carol as her attorney. In 2015 Mary Sr. was diagnosed with Alzheimer's dementia, and following hip surgery in 2015 resided in a long term care facility.
Following Mary Sr.'s move to the long term care facility Carol was of the opinion that it was unrealistic to expect that her mother would ever move back into her home. She was of the view that the home should be sold in order to eliminate carrying costs and use the proceeds to help with Mary Sr.'s ongoing care expenses.
Mary Jr. was adamant that that the house not be sold. Following an exchange of emails over the course of the summer of 2015, Carol agreed that no steps would be taken to sell the property without Mary Jr.'s agreement. However, in December 2015 Carol again suggested that the home be sold, noting that the unoccupied house was at risk of vandalism and damage and was proving difficult to insure.
After some extremely negative exchanges, counsel for Mary Sr., on Carol's instructions wrote Mary Jr. advising that the home would be sold and invited Mary Jr. to remove any personal items that she wished to retain.  
On May 16, 2016 Mary Jr. commenced an action to restrain the sale and sought damages for $1,500,000 alleging that Carol had mismanaged her mother's affairs and that the POA's were obtained by fraud and undue influence. Carol retained counsel who provided a settlement letter to Mary Jr.'s counsel on June 13, 2016. The proposal included an informal accounting of her actions as attorney for property or a formal passing of accounts if demanded. Carol also offered to have the home sold to Mary Jr. at fair market value as Mary Jr. had expressed a wish to move into the home.
Justice Monahan found that the June 2016 settlement letter was "a good faith and reasonable attempt to resolve the matter and avoid the need for further litigation." Rather than respond to the letter, counsel for Mary Jr. served two motions, one for preservation of assets and one for a passing of accounts.
On August 3, 2016 Mary Sr. passed away. Justice Monahan indicated that "one might have thought that the passing of Mary Sr. would have caused the parties to pause and reassess whether further litigation was necessary or whether there were other options that might be fruitfully pursued." Notably the POA's ceased to be of any effect as of the date of Mary Sr.'s passing.
To the contrary, Mary Sr.'s counsel noted pleadings closed against Carol and rejected Carol's proposal that the RBC be appointed as Estate Trustee in place of Carol. The litigation carried on with "many volumes of materials" filed by the parties. At a January 22, 2017 Case Conference the parties agreed to attend mediation on April 11, 2017 where all issues were settled, essentially in accordance with Carol's June 2016 settlement letter.
Not surprisingly, Justice Monahan found that "taking all of the factors and considerations into account, I conclude that there are exceptional circumstances justifying a significant cost award in favour of Carol, notwithstanding the fact that the parties have settled the litigation. He states further that "had Mary Jr. been willing to consider alternatives to further litigation in June 2016 or following Mary Sr.'s death in August 2016 the matter could have been resolved at a much earlier stage, thereby avoiding the need for the costly and bitter litigation which ensued."
Carol submitted a Bill of Costs on a partial indemnity basis in the amount of $93,076.05. Given that Carol had previously received a payment toward her costs in the amount of $20,000 from the Estate, Justice Monahan ordered Mary Jr. to pay $75,000 in costs to Carol.
Regarding the conduct of the litigation, Justice Monahan referenced the 2013 Report of the Action Committee on Access to Justice in Civil and Family Matters as chaired by Supreme Court Justice Thomas Cromwell ("the Action Committee"). He indicated that the Action Committee argued that to improve the system "we need a new way of thinking that concentrates a simplicity, coherence, proportionality and sustainability at every stage of the process." He stated that "this new way of thinking must inform the way in which all participants approach the civil justice system, including the judiciary, the bar, litigants, government and the public. The approach adopted by Mary Jr. and her counsel exhibited none of the new approach called for by the Action Committee".    
Morland Jones v. Morland-Jones 2018 ONSC 3758
A somewhat less gentle commentary on the conduct of litigation was made by Justice Kristjanson in the recent family law case Morland Jones v. Morland-Jones 2018 ONSC 3758 http://canlii.ca/t/hsl8j
In this case the parties has settled the issues between them by way of a final order but encountered difficulties regarding the identification and return of certain items of personal property. Counsel exchanged correspondence for a number of months following which the husband's counsel booked a long motion date for a contempt motion without first canvassing the dates with the wife's counsel and then served the motion personally on the wife without providing any advance notice or courtesy copy to the wife's counsel. Thereafter the husband's counsel refused to agree to an adjournment request.
Justice Kristjanson expressed concern that the husband's counsel's actions deprived other litigants of the opportunity to have their cases heard and failed to promote the "primary objective" of the Family Law Rules as set out in Rule 2:
(2) The primary objective of these rules is to enable the court to deal with cases justly.  O. Reg. 114/99, r. 2 (2).
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.  O. Reg. 114/99, r. 2 (3).
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. 

Justice Kristjanson goes on to emphasize that "civility and professionalism contribute to the primary objective of the Family Law Rules'. She notes that "this case is a good illustration of what happens when lawyers fail to comply with the principles of civility and professionalism.
In dismissing the contempt motion with costs, Justice Kristjanson went so far as to note that she provided the husband's counsel with a copy of the Advocate's Society Principles of Professionalism and Civility and sets out the following excerpts in her reasons:
Cooperating with Opposing Counsel
5. Advocates should avoid unnecessary motion practice or other judicial intervention by negotiating and agreeing with opposing counsel whenever practicable.
6. When advocates are about to send written or electronic communication, or take a fresh step in a proceeding which may reasonably be unexpected, they should provide opposing counsel with some advance notice where to do so does not compromise a client's interests.
Cooperating with Opposing Counsel on Scheduling Matters
11. Advocates should consult opposing counsel regarding scheduling matters in a genuine effort to avoid conflicts.
12. In doing so, advocates should attempt to accommodate the calendar conflicts of opposing counsel previously scheduled in good faith for hearings, examinations, meetings, conferences, vacations, seminars or other functions.
13. Advocates should agree to reasonable requests for scheduling changes, such as extensions of time, provided the client's legitimate interests will not be materially and adversely affected.
Accommodating Requests from Opposing Counsel
30. Advocates, and not the client, have the sole discretion to determine the accommodations to be granted to opposing counsel in all matters not directly affecting the merits of the cause or prejudicing the client's rights. This includes, but is not limited to, reasonable requests for extensions of time, adjournments, scheduling of events, and admissions of facts. Advocates should not accede to the client's demands that they act in a discourteous or uncooperative manner toward opposing counsel.
Take Aways
  1. The demands on the justice system and the costs of accessing the system are well documented and are an ever present concern in the Courts across the country.
  2. As a result, Courts are increasingly stepping beyond the strict issue it is being asked to determine;
  3. Lawyers are accountable to the justice system and opposing counsel. It is no longer good enough to rely on the age old "I am following my client's instructions" justification.
  4. Early out of court resolution options and processes such as mediation must be explored in detail.
  5. Incurring unnecessary costs, fees and disbursements will not be appreciated by clients and certainly will not be tolerated by our Courts.
By Albert H. Oosterhoff
This is an update to my recent blog[1] on Re Milne Estate.[2] LawPro posted an alert on Re Milne Estate today, in which they advise that the case has been appealed. LawPro also advises lawyers who have drafted wills that contain wording similar to that which Justice Dunphy objected to in Milne to notify their excess insurers. LawPro also suggests that lawyers should consider notifying clients who may be impacted by the decision and advising clients of the option to update their wills.
It is to be hoped that the case will be reversed on appeal and that the appellate court will clarify what wording is permissible when drafting primary and secondary wills. Such wills were approved in Ontario in 1998[3] and have become a common and very useful device in will planning and drafting. Hence clarity in how they are drafted is desirable.

[2] 2018 ONSC 4174 http://canlii.ca/t/hv26k
[3] in Granovsky Estate v. Ontario (1998), 156 D.L.R. (4th) 557 (Ont. Gen. Div.).
By Kimberly A. Whaley

In Re Wall Estate, 2018 ONSC 1735 http://canlii.ca/t/hr1bn Justice Mulligan, considered the applicability of the Limitations Act, 2002 SO 2002, c 24 Sch B to a Notice of Objection in a passing of accounts application. The issue here was whether an estate trustee may move to strike a beneficiary's Notice of Objection to Accounts in the face of the estate trustee's application to pass accounts, based on the Limitations Act, 2002, or the doctrine of laches or acquiescence.
The deceased (the objector's mother) died in 2005. In accordance with her Will, her former lawyer became the estate trustee until his removal through a consent Order dated August 4, 2016.

The Will left the bulk of the deceased's estate to her two children, in trust, until they attained the age of 60. The Will further provided that the trustee had absolute discretion to pay funds to these two beneficiaries during their lifetime before reaching age 60.

The deceased's son passed away before reaching 60, leaving her 54-year-old daughter as the sole vested beneficiary.

The trustee managed the deceased's complex mix of assets and made investments in the years following her death.   In the course of doing so, he held annual meetings with both beneficiaries, and then just with the daughter after the son died. There were differing versions as to what took place at these meetings, but the undisputed facts were as follows:
(i) the daughter never signed a formal release for any of the years in question;
(ii) the trustee never passed accounts in the years that followed;
(iii) the trustee did not send out the annual accounts to the beneficiaries before these meetings, nor did he provide them with copies to take away; and
(iv) the trustee did not arrange for independent legal advice for the daughter regarding any of the annual meetings.
In 2014, the daughter brought an application for the trustee to pass accounts for the entire period from 2005 onwards. An order to that effect was received in January of 2015 for the period up to December 31, 2013. On June 2, 2015, the daughter filed a 13-page Objection to the Accounts. The trustee brought this motion to strike the objections.

The trustee did not dispute that he was required to pass accounts. However, he took issue with the requirement to address the Objections to Accounts which were not filed until June 2, 2015. He argued that because of the Limitations Act, 2002 or laches or acquiescence, he is not required to address any objection to accounts for the period from the date of death until December 31, 2012.
In concluding that the Objection was not statute barred, the Court reviewed various decisions on topic, in particular, the recent decision of the Ontario Court of Appeal in Armitage v. Salvation Army,[1] where Justice Hourigan, speaking on behalf of the Court noted that "the Limitations Act, 2002 does not apply [to passing of accounts] because compensation for an attorney for property through the passing of accounts process does not constitute a "claim" within the meaning of the Limitations Act, 2002."
Justice Hourigan went on in Armitage to conclude that:
The result, in my view, is that a passing of accounts under the SDA is not subject to the two-year general limitation, found in the Limitations Act, 2002. The common law in that regard has not changed with the enactment of that legislation. Consequently, the only defences available are the equitable defences of laches and acquiescence, neither of which were asserted in the present case.
However, in obiter, the following footnote was added to the above paragraph:
1. I do not mean to categorically provide that the Limitations Act, 2002 has no applicability to the passing of accounts process under the SDA. In particular, it may be that the filing by the beneficiary of a Notice of Objection after an attorney has sought passing of accounts is a claim within the meaning of the Limitations Act, 2002. However, I leave this determination to another case where it arises directly on the facts.
After reviewing the matter, Justice Mulligan found that if the passing of accounts does not constitute a "claim", neither does the Notice of Objection in this case. The Objections taken at their highest may result in a reduction or loss of compensation. If the Objections are successful to any extent, no additional funds would be payable immediately to the daughter as a beneficiary of the discretionary trust.  The corpus of the estate would be enlarged, increasing the funds available for the discretionary trust, and ultimately, could increase the amount available to be paid to her, but only if she survives to age 60.  "On the facts here, I am not satisfied that the Notice of Objection rises to the level of a "claim" as contemplated by the Limitations Act, 2002."
The Court then considered the alternate defences of laches and acquiescence.
In Armitage, the Court of Appeal turned to the Black's Law Dictionary to define laches as the "unreasonable delay in pursuing a right or claim - almost always an equitable one - in a way that prejudices the party against whom relief is sought."
Referencing Lindsay Petroleum Co. v Hurd, [2] Justice Mulligan noted that in cases where the defence of laches is raised, there are two important factors to consider: the length of the delay and the nature of the acts done during the interval, "which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as it relates to the remedy."
Justice Mulligan went on to cite the Supreme Court of Canada's decision in MK v HM, [1992] SCJ No 85, which considered the basic principles surrounding laches and acquiescence. There the Court noted that acquiescence was a fluid term, with a primary meaning of estoppel, a secondary element of delay on the part of the Plaintiff and a final element, being an alteration in the defendant's position based on the Plaintiff's inaction.
Applying these principles to the facts of this case, the Court was not satisfied that the doctrine of laches or acquiescence has any application.
While the Court here decided that the Limitations Act was not applicable to the Notice of Objection filed, it did so on the particular facts of this case. Hence the question of the Act's applicability remains open for consideration.
This case is also a reminder to Estate Trustees to have their administration approved and discharged. Either by way of passing accounts or by asking beneficiaries to approve their administration and provide for their informal discharge through Releases.   It would have been beneficial in this situation for the Trustee to recommend that the beneficiaries obtain independent legal advice and to provide them with copies of accounts before and after the annual meetings.

[1]  Armitage v. Salvation Army, [2016] O.J. No. 6636
[2]  Lindsay Petroleum Co. v. Hurd, [1874] J.C.J. No. 2

Whaley/Hull Webinar Series
October 24, 2018
Client Capacity and the Family Law Lawyer's Retainer
November 28, 2018
Client Capacity and the Corporate Lawyer's Retainer
December 12, 2018  
Live Webcast presented by Ian Hull and Kimberly Whaley

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 2, 2018     
Speakers: Kimberly Whaley and Alex Swabuk
Estate Planning Council of Toronto
Elder Abuse
November 6, 2018     
Speaker: Kimberly Whaley

Professional Advisors Breakfast Seminar
November 7, 2018
Speaker: Kimberly Whaley

STEP - Mental Capacity Special Interest Group, London, UK
Putting the Lawyer at the Heart of Capacity Assessments: Examining the Role of the Lawyer in Determining Capacity
December 7, 2018     
Speaker: Kimberly Whaley
Osgoode Professional Development
2019 Elder Law - Marriage Contracts; conflicts in Blended Families: Sibling Struggles, Predatory Marriages and Family Meetings
February 26, 2019
Speakers: Kimberly Whaley and Professor Albert Oosterhoof
Osgoode Professional Development
Powers of Attorney and Guardianship: Non-contentious and Contentious Matters
April 9, 2019
Speaker: Kimberly Whaley
Cambridge Forum
Steering Committee Member: Kimberly Whaley
April 14-16, 2019
Osgoode Professional Development
Passing of Fiduciary Accounts
April 30, 2019
Chair: Kimberly Whaley Speakers: Professor Albert Oosterhoof, Nancy Patrick, Birute Lyons and Ian Hull
STEP Premier Sponsorship Education Session
Short Case Study Presentation
May 22, 2019
Presenter: Kimberly Whaley

Blank Pages, Tractor Fenders and Other Strange but Valid Holographic Wills

The Meaning of "Survival"

What Is a Will and What is the Role of a Court of Probate?

Borges v Borges: Despite Privacy Concerns, Relevant Medical Records Should be Disclosed Where Capacity is at Issue

Costs of Estate Litigation: Who Pays the Bill?

Double Trouble: Court Ruling Raises Issues with Dual Wills

Elder Abuse: A universal issue - BBC Report on Australia's Elder Abuse Scandal

The Uncertainty of Marriage Contracts

Heartbreak, Hockey and the Quinn Estate

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