WEL Newsletter, Vol.9 No.7, October 2019
Dear ,
 
Every year we do a Halloween Newsletter Edition. Halloween has always been my most favourite celebration! For as long as I can remember, we would always dress up and enjoy a ghostly & ghoulish meal amongst all the kids (the adult kids too)! Halloween allows everyone the opportunity to take themselves a little less seriously. So this year, consider having a little Halloween fun and remember be wary of the scary things....... "By the pricking of my thumbs, something wicked this way comes." - William Shakespeare, Macbeth.

Please Enjoy,
Kim
 

I. WEL NEWS
1. IN MEMORY OF MARY L. MACGREGOR

I write in memory and in recognition of Mary Louise MacGregor who sadly passed away on Friday. I want to acknowledge her life, and her death which came far too soon. Mary was my friend for over 20 years, my colleague and former law partner at Dickson MacGregor Appell LLP and she was a committed, kind, giving, supportive wife, mother, sister, lawyer and friend to many.

Mary was a respected and giving mentor to me, and a wonderful teacher to many others. We collaborated together in strategizing solutions for clients, in writing as educators and over mundane things such as whether to put Caesarstone or granite in our kitchens.

Mary was dedicated to her clients and was such a diligent, capable lawyer who worked so very hard-giving her all, all of the time.

Mary was a Wills, Estates & Trusts planning, administration and litigation lawyer, also practicing Family & Commercial Litigation in her career. Mary practiced law as a partner at Dickson MacGregor Appell LLP, at Wooley, Dale and Dingwall and as a partner at Blaney McMurtry LLP. Mary was also Manager, Trust Legal Services at National Trust.

Mary's practice was focused on Wills, Estates, Trusts including indigenous land claim trusts, family business planning, personal tax planning, and estate litigation. Mary was also a very experienced mediator in her own right, she also mediated with our mutual colleague, and friend Marsha Onyett.

Some of Mary's many contributions include lecturing at Osgoode Hall Law School, co-author of, O'Briens Wills and Trusts Precedent book and author of Preparation of Wills and Powers of Attorney: First Interview to Final Report Third Edition (Canada Law Book).

Mary was awarded the distinguished OBA Award for Excellence in Trusts and Estates in May 2011. She was a certified specialist.

I am always and will forever be very grateful to Mary for her kind and selfless support and belief in me as a lawyer and for our friendship. Mary's passing is a great loss, especially to her family, to John, Duncan, Caitlin, Daune, her brother, her friends and the legal profession at large.

My deepest condolences to Mary's immediate and extended family and indeed to all who will miss Mary.
2. EASTER SEALS DROP ZONE

WEL AND THE SCOTIA WALLCRAWLERS' THANK YOU FOR SUPPORTING OUR QUEST TO SUPPORT EASTER SEALS' KIDS

WEL Partners and the Scotia Wallcrawlers team thank you for your support. On September 23, 2019, Kimberly Whaley, Daniel Paperny, Sareh (Lua) Ebrahimi, Shannon Hill and Dana Hogan from WEL Partners along with Tony Lalonde (Team Captain), Laura Castelli, Nick Sebben and Ana Rizo from Scotia all rappelled 175 Bloor St. East.
 
A grateful thank you for your generous support. Together we raised $10,438.


3. GTA ACCOUNTANTS AND GTA FINANCE NETWORK, OCTOBER 3, 2019

 
On October 3, 2019, Kimberly Whaley presented to the GTA Accountants, and GTA Finance Network on Elder Abuse.
 

4. ONTARIO BAR ASSOCIATION, 10th ANNUAL BREAD AND BUTTER ISSUES IN FAMILY LAW, OCTOBER 4, 2019

 
On October 4th, 2019 Mike Marra and Alexander Swabuk presented at the OBA's 10th Annual Bread and Butter Issues in Family Law CPD program. Alex, Mike and Roslyn Tsao from Epstein Cole LLP spoke on Life Insurance as Security for Support: Best Practices and Alternatives.
 

5. Albert Oosterhoff mentioned in the UNIVERSITY OF WESTERN ONTARIO GAZETTE, FALL 2019

 
Albert Oosterhoff was interviewed for an article in the University of Western Ontario Gazette, Fall 2019 Issue, respecting his achievements in receiving the OBA's Distinguished Service Award, the OBA Award for Excellence in Trusts and Estates and a distinguished honorary STEP membership.  
 
Here is an excerpt of what our Professor says:
 
Western Law: What's your advice for the class of 2019?
 
Albert: Be true to yourself. Remember that while the law is demanding, it should not dominate your life, because there are other very important personal relationships in your life and those are ultimately more important than the practice of law. But in everything that you do you should demonstrate humility, but also integrity, and especially civility toward others.

6. THE ADVOCATES QUARTERLY, VOL. 50, NO. 2 OCTOBER 2019

 
Kim's article, 'Costs in Estate Litigation' was published in The Advocates Quarterly, Volume 50, Issue 2, October 2019
 
Kim's article, 'The Essential Guide to Estate Dispute Mediations: Unique Challenges and Creative Solutions for Lawyers' was published in The Advocates Quarterly, Volume 50, Issue 2, October 2019
 
Kim's article, 'Finding Missing Beneficiaries' was published in The Advocates Quarterly', Volume 50, Issue 2, October 2019.

II. WEL SHOUT OUTS
WEL Congratulates our friend and colleague Margaret O'Sullivan, of O'Sullivan Estate Lawyers, whose firm was awarded Boutique Firm of the Year, presented at the STEP 2019/20 Private Client Awards. The award celebrations took place on September 25, 2019 in London, U.K.

III. LAW REVIEW
(i) BUT WE NEVER HAD 'THE TALK' .... - THE CASE OF DERAKSHAN V. NARULA
Derakhshan v. Narula, 2018 ONCA 658 (CanLII), http://canlii.ca/t/ht4zm
 
By Alexander Swabuk
 
Introduction

Relationships can be complicated. In the beginning, maybe you found everything to be relatively easy and "perfect" - things unfolded pretty well, you (pretended?) to like the same music, sports, restaurants and types of movies. You may have even convinced yourself you were not allergic to her cat.
 
But, as life has a tendency to do, sooner or later, things get real. No amount of Claritin or Reactin can stop that cat dander from causing you to burst out into an uncontrollable sneezing fit. Eventually...the person you are spending quality time with will also want to know where they stand and/or where 'this' is going. Although the dreaded "What are we?" talk may make one party feel vulnerable, it is usually an important step toward developing a romantic relationship with a strong foundation. But what happens if you don't have "the talk" and one party truly believes they are in a relationship and the other party does not? Are there potential legal ramifications to this "love" conundrum?
 
Derakshan v. Narula
 
In the 2018 Ontario Superior Court case of Derakshan v. Narula[1], the Applicant, Farhad Derakhshan ("Farhad"), believed he was in a long term relationship with the Respondent, Seema Narula ("Narula"), which had recently concluded. As such, Farhad attempted to utilize various equitable remedies as he sought a "fair division of assets and constructive trust for unjust enrichment" that reflected his contributions as a co-venturer during the six years during which he was, allegedly, in a spousal relationship with the Narula. Farhad also sought retroactive spousal support from 2012 to 2015, and the return of his 49 shares in Turtle Island Staffing Inc. ("TIS").
 
During the 21 day trial, Farhad asserted that he and Narula were in a common-law relationship and that they cohabited from 2006 to 2012 at Narula's two Ottawa homes. Farhad also claimed that Narula was unjustly enriched by his efforts in assisting her to find, purchase and renovate properties that were then rented or sold. Additionally, Farhad asserted that he and Narula operated as co-venturers and that he "searched for, explored, determined value and desirability and advocated for the purchases of all properties" acquired during his relationship with Narula; that he was responsible for all renovation plans/projects; and was physically involved in the renovations of the properties.
 
Throughout the proceedings, Farhad contended that Narula was "unjustly enriched, with no juristic reason" by his sacrifice of "time, money and future prospects" and that as a result, a constructive trust existed with respect to all properties and corporations "purchased, developed and sold" during their relationship. At trial, Farhad put a dollar value on his claims of approximately $4.5 million. This amount included: i) the amount Farhad claimed to be owed for the work he performed for the benefit of Narula; ii) his "share" of the net profit or wealth accumulated when he and Narula were in a common-law relationship; and iii) the sum of $1.5 million, which he claimed was the value of the 49 shares in TIS and alleged that Narula fraudulently transferred to herself by forging his name on a share transfer document.
 
The court relied on the principle that f or an Applicant looking to utilize an equitable remedy such as a claim for unjust enrichment, they must be able to establisthe following threelements:

(i)  aen ri c hm ent for b en efit to the respondent by the applicant;
(ii) a corresponding deprivation of the applicant; and
(iii) the absence of a juristic reason for the enrichment. 

The case law has consistently held that "the courts should exercise flexibility and commosenswheapplying equitable principleto family law issuewith due sensitivity to the special circumstances that can arise in such cases'."   [2]  In domestic relationships, the parties often accumulate wealth through joint efforts. When the relationship breaks down, if one party retains a disproportionately large share of the assets that were accumulated through this "joint family venture", this would constitute unjust enrichment. 

Fortunately, the courts have identified the following non-exhaustive list of factors to assist in making a determination of whether a joint family venture exists: 

(i) the mutual effort of the parties and whether they worked collaboratively towards common goals; 
(ii) economic integration of the couples' finances; 
(iii) actual intent or choice of the parties to not have their economic lives intertwined, whether such is expressed or inferred; and 
(iv) whether the parties have given priority to the family or there is detrimental reliance on the relationship, by one or both of the parties, for the sake of the family. [3]
 
Section 29 of the Family Law Act [4]    defines a spouse as a married couple or "two persons who are not married to each other and have cohabited continuously for a period of not less than three years",or have"a relationship of some permanence, if they are the parents of a child". Despite the fact that 24 witnesses were called and 142 documents were entered as exhibits, the Application Judge, the Honourable Justice Sheard, determined that  Farhad had failed to prove that he and Narula were in a spousal (or common-law) relationship for three years as required by the provisions in the  Family Law Act Justice Sheard also did not find that there was a joint family venture in the accumulated value of the properties and noted that Narula and Farhad had no children togethe r , weren ever married and referred to themselves as"single"on their tax returns. Moreove r , they la r gely kept separate bank accounts and Farhad used many di f ferent addresses on his driver's license, car insurance, passport, and income tax returns.
 
Finding at the ONCA
 
In September of 2019, Farhad appealed Justice Sheard's decision claiming that she "made palpable and overriding errors of mixed fact and law." Farhad also sought an order to set aside the decision and have the case reheard by a new judge as he claimed that Justice Sheard's reasons were inappropriately copied from the written submissions of the respondent.
 
On September 23, 2019, the Ontario Court of Appeal determined, inter alia, that there was no pooling of funds/economic integration and that there was ample evidence to justify Justice Sheard's conclusion that there was no joint family venture. Although t he Ontario Court of Appeal noted that there may have been some financial overlap between the Parties, they ultimately upheld Justice Sheard's decision and determined that her reasons were "measured and comprehensive". Farhad's appeal was dismissed and he was ordered to pay Narula $20,000.00 in costs.
 
While there was clear evidence that Farhad and Narula enjoyed a romantic relationship, and that for approximately one year, from the summer of 2011 to September 2012, Farhad lived at Narula's house, the evidence fell short of establishing that they were in a spousal relationship. Having failed to establish that he and Narula were spouses, Farhad could not establish any entitlement to spousal support. Further, having failed to establish that he and Narula were in a spousal relationship, Farhad could not show that they were engaged in a "joint family venture". Although the evidence did show that Farhad was involved in the renovation of properties purchased by Narula, Narula's evidence, in the form of cancelled cheques and accounting records, supported a finding that Farhad was paid in full for his services. Moreover, the evidence lead to the conclusion that Farhad benefited financially from his relationship with Narula, in that she provided him with a steady stream of well-paying work, allowed him free use of her properties, and paid his way on a number of trips. Accordingly, the court determined that Farhad failed to prove his claim in unjust enrichment.


[1] Derakhshan v. Narula, 2018 CarswellOnt 902, 2018 ONSC 537, 291 A.C.W.S. (3d) 579
[2]  K err v. Baranow, 2011 CarswelBC 240(S.C.C.); Becker v. Pettkus , [1980] 2 S.C.R. 834 (S.C.C.)
[3]  Ibid.
[4] Family Law Act, R.S.O.1990,c.F.3
(ii)  "MISLEADING EVIDENCE" - NOT ENOUGH TO DENY COSTS TO SUCCESSFUL PARTY IN ESTATE
Birtzu v. McCron, 2019 ONCA 777 (CanLII), http://canlii.ca/t/j2nkm      
 
By Kimberly Whaley
 
Introduction
 
Recently, the Court of Appeal for Ontario overturned the cost award[1] of a trial judge in the will challenge case of Birtzu v McCronn, finding that the trial judge was "plainly wrong" in denying the successful party her costs.  [2]
 
Background
 
A father died, leaving behind three adult children: two sons and a daughter. In his will he left his entire estate to his daughter where previous wills had distributed his estate among his three children and grandchildren. The sons commenced an action seeking, among other things, an order setting aside the will, alleging their father lacked testamentary capacity.
 
The trial lasted for 21 days. Ultimately, the trial judge dismissed the brothers' claim, specifically concluding that the daughter had discharged her onus to prove that her father had testamentary capacity. Other parts of the claim were dismissed as they were statute-barred.
 
Despite the daughter's success, and the fact that the "loser pays" principle generally applies to estate litigation, the trial judge concluded that both parties should bear their own costs of the proceeding.
 
Court of Appeal
 
The daughter sought, and was granted, leave to appeal the cost award. Cost awards are discretionary. The Court of Appeal seldom grants leave to appeal a cost award and will vary such an order only if the appellant demonstrates legal error or that the order is "plainly wrong." [3]
 
The Court of Appeal noted that the daughter was "entirely successful at trial."[4] In the normal course she would have received her costs. This was not a case for costs payable by the estate. The daughter was the sole beneficiary.
 
In his brief endorsement, the trial judge supported his decision on the costs on the basis that the daughter was successful only by virtue of the limitation period defence. However, the trial judge made detailed findings of fact in favour of the daughter. The Court of Appeal concluded that the brothers lost at trial "on all fronts."[5] The implication in the cost endorsement that success had been somehow divided was "not borne out by an examination of the trial judge's reasons for judgment." [6]
 
The second reason the trial judge gave for denying the daughter her costs was his finding that she gave "misleading evidence" at trial. The trial judge found that the daughter had lied about her recollection of conversations she had with her father's doctor about her father's mental condition.
 
The Court of Appeal refused to reconsider the trial judge's credibility assessment. However, the Court of Appeal noted that although a party's conduct (including offering misleading testimony) can be relevant in assessing costs, costs "are not used to punish a litigant for giving misleading evidence." [7]
 
The Court concluded that while misleading evidence can never be condoned, the evidence given by the daughter could not justify, on its own, a denial of costs in respect of a 21-day trial in which she was entirely successful in defending. The trial judge "erred in law by focusing his costs analysis almost exclusively on the misleading nature of one aspect of [the daughter's] evidence." [8]
 
The Court of Appeal also found that it was "incumbent on the trial judge in this case, to more fully explain why, despite [the daughter's] total success, she was denied her costs." The Court found that the trial judge's cost order was "plainly wrong" and that the costs should have followed the result. The Court fixed the costs on a partial indemnity basis at $150,000.00.
 
Conclusion
 
Cost awards are rarely overturned, except where, like in this case, the trial judge is "plainly wrong". While there are situations where the parties in an estate dispute should be responsible for their own costs, this case, where one party was completely successful, was not one of them. 

For more information on costs in estate litigation see my paper 'Costs in Estate Litigation' on our website, and a version of which article was published in The Advocates Quarterly, Volume 50, Issue 2, October 2019.


[1] Birtzu v McCron, 2017 ONSC 2276.
[2] Birtzu v McCron, 2019 ONCA 777.
[3] Birtzu v McCron, 2019 ONCA 777 at para 8.
[4] Birtzu v McCron, 2019 ONCA 777 at para 9.
[5] Birtzu v McCron, 2019 ONCA 777 at para 12.
[6] Birtzu v MCCron, 2019 ONCA 777 at para 12.
[7] Birtzu v McCron, 2019 ONCA 777 at para 15.
[8] Birtzu v McCron, 2019 ONCA 777 at para 17.

IV. UPCOMING EVENTS
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 1, 2019
Speaker: Matthew Rendely and Daniel Paperny

Summit on Aging: Keeping Me Safe - Capacity, Risk & Medical Assistance in Dying (MAID) - Peterborough, Ontario
November 6, 2019
Speaker: Kimberly Whaley

2019 Isaac Pitblado Lectures - Winnipeg, Manitoba
Predatory Marriages
November 8, 2019
Speaker: Kimberly Whaley and Albert Oosterhoff

CCEL BC
Bridging the Gap, Elder Law for Everyone
Elder Abuse, Civil and Criminal Remedies
November 14-15, 2019
Speaker: Kimberly Whaley

Ontario Bar Association: Ethics, Civility and Professional Responsibility in the Courtroom, Mediation and Beyond
November 22, 2019
Speaker: Kimberly Whaley
https://www.cbapd.org/details_en.aspx?id=ON_ON19INS14C

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 6, 2019
Speaker: Alex Swabuk and Sareh (Lua) Ebrahimi

Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Family Law Matters
December 10, 2019
Speaker: Michael Marra

Institute 2020 Elder Law Section Program
Rights and Limitations on an Attorney Under a Power of Attorney
February 2020
Chairs: Albert Oosterhoff and John Poyser

Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Real Estate Matters
February 26, 2020
Speaker: Matthew Rendely
 
Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Corporate Client Matters
March 18, 2020
Speaker: Kimberly Whaley
http://www.cbapd.org/details_en.aspx?id=ON_ON20ELD02T 

Osgoode Professional Development

Passing of Accounts & Fiduciary Accounting
April 7, 2020
Chair: Kimberly Whaley


V. IN CASE YOU MISSED IT - RECENT BLOG POSTS
Kwok v Kwok: Is Section 3 Counsel Always Appropriate?

Who Qualifies as a 'Spouse'? The B.C. Court Of Appeal Says it's a 'Judgement Call

We did it! Rappelling 17 storeys for Easter Seals! Thank you for your support

Avoiding Common Errors in Probate Applications

Reflection as Property from Anthony Bourdain's Estate to be Auctioned

Declaratory Relief vs. Consequential Relief and the Limitation Period Applicable to Each

Mark Handelman has been appointed Provincial Representative to the CAMH External Panel Review

John Poyser's Second Edition of Capacity and Undue Influence Released

Matthew Rendely published in the ETPJ: Posthumously-Conceived Children Born in Ontario: What are Their Rights and What do Estate Trustees Need to Know


VI. CONNECT WITH WEL
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