Whaley Estate Litigation

Whaley Litigation Newsletter Vol. 2 No. 2 May 2012




We continue to invite feedback, comments, enquiries and even contributions you wish to share.


Whaley Estate Litigation provides litigation, mediation and dispute resolution services to you or your clients in the following practice areas: 

  • Will, Estate, Trust Challenges/Interpretations
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Hearings
  • End of Life Decision Making
  • Treatment Decision Disputes
  • Elder Law
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Counsel to Estate Trustee(s) and Estate Trustee(s) During Litigation and other Fiduciaries
Please enjoy,


Kimberly A. Whaley
Whaley Estate Litigation

WEL News


1. 2012 OBA Award for Excellence in Trusts and Estates


Whaley Estate Litigation offers its sincere congratulations to the Honorable Madam Justice Susan Greer, who will be awarded the Award for Excellence in Trusts and Estates by the Ontario Bar Association at the Section End of Term Dinner on May 29, 2012.  WEL will be there to celebrate this honour with Justice Greer at Archeo (Distillery District). For details, access this link:   www.cba.org/pd


2. National Academy of Elder Law Attorneys ("NAELA")


Kimberly Whaley and Ameena Sultan attended the National Academy of Elder Law Attorneys ("NAELA") Spring Conference in Seattle, Washington, this past month, on April 26 - 28th.  Ameena and Kim presented on "Jurisdictional Issues Related to Incapable Persons Residing/Visiting Both in the USA and Canada", together with Jasmine Sweatman of Sweatman Law. Our thanks to Archie Rabinowitz for the preparation of the paper for presentation.


Kim, Jasmine and Ian Hull of Hull & Hull, also presented on: "Legal and Medical Issues Concerning Capacity and Substitute Decision Making."


Kim agreed to be on the NAELA Conference Planning Committee for Canadian content at the NAELA Spring Conference last year held in Las Vegas.


The conference was attended by practitioners of Elder Law across the USA with several lawyers attending from various Canadian provinces.  Our Ontario colleagues, Rachel Blumenfeld of Miller Thomson LLP; Jan Goddard of Jan Goddard and Associates, now Goddard Gamage Stephens; Heather Mountford, also of Goddard Gamage Stephens; Laura Watts, Principal, Elder Concepts, also attended, participated and presented on various issues concerning Elder Law.


Our Chief Justice of Canada, The Right Honorable Beverley McLachlin, was the key note speaker for the NAELA conference. Justice McLachlin spoke on the "Law's Response to an Aging Population."

NAELA is a fantastic organization with lawyers representing its membership from every state in the USA. There was such a great collection of expertise and professionalism at the Conference.


I personally recommend NAELA to you as an organization that you will get much out of.


I am grateful to have had the opportunity to participate and to share and learn from our colleagues and friends in the USA.  


For more information on NAELA, and in particular membership information, please access their website at:  http://www.naela.org/


3. Erin Cowling, New Litigation Associate


WEL proudly announces a new addition to our Estate Litigation team, Ms. Erin Cowling. Erin has been a litigator since 2005 and it is with pleasure that we welcome Erin who is joining us on June 1, 2012.  Stay tuned ... more on Erin to come. 


4. Legislative Changes


(a) The Funeral, Burial and Cremation Services Act, 2002 ("FBCSA") will come into force on July 1, 2012 and will consolidate and replace both the Cemeteries Act (Revised) and the Funeral Directors and Establishment Act. Click to link to legislation


(b) Legislative changes have been made to Rule 74 of the Ontario Rules of Civil Procedure. The Ontario Regulation 55/12 made under the Courts of Justice Act on April 11, 2012, will come into force on July 1, 2012.  Click to access regulation 55/12.


Rule 74 is the rule governing applications to pass accounts.


Notably, the new rules now provide that the court may grant a judgment on a passing of accounts where there is a request for increased costs without the need for a hearing.


(c)  Alberta's new Wills and Succession Act, SA 2010, Chapter W-12.2, came into force on February 1, 2012.  Click here to access The Wills and Succession Act. 


The Wills and Succession Act amalgamates the former Wills Act, Intestate Succession Act, Survivorship Act, and Dependant's Relief Act. Notably, provisions dealing with the execution and validity of Wills have been amended; provisions dealing with the distribution of assets upon an intestacy have been amended; survivorship rules have been amended; the dependant's relief provisions have been amended to allow an adult child under the age of 22, in school full time, to make an application for relief, as well as a minor grandchild or great grandchildren who depended on their grandparents for support. 


5. Book Review


"The Caregiver's Path to Compassionate Decision Making" by Viki Kind, MA, is a book that I picked up at the NAELA, Seattle Conference.


The book is a fantastic read. It is a learning and resource guide for establishing a decision making framework, including end of life decision making. This book is a practical, informative and highly insightful human navigation tool for lawyers, their clients, and everyone who inevitably at some point faces these life changing events concerning a loved one becoming older, and requiring support.


I really loved the appendix where there is a chart concerning capacity, considerations on advance directives, and a glossary. Click here to learn more about this book.



Rule 75.1 is the mandatory mediation rule in the Ontario Rules of Civil Procedure for Estates, Trust and Substitute Decision Making in the jurisdiction of Toronto, Ottawa, and Essex County.


Rule 75.1 and in particular, Rule 75.1.05(4)(f) states that the Court may direct: "how the cost of the mediation is to be apportioned among the designated parties."


The rule is clear that it is the "designated parties" who must absorb the cost of the mediation. 


The manner in which the cost is to be apportioned should include the consideration of principles of equity, fairness and proportionality.


An Order Giving Directions often contains a mandatory mediation order pursuant to Rule 75.1 within the regions of Toronto, Ottawa and County of Essex, for Estates, Trust and Substitute Decision proceedings. Rule 75.1.05 (1) sets out the matters to be addressed in an Order Giving Directions respecting a mediation Order.


75.1.05 (1) In a proceeding described in subrule 75.1.02 (1), except a contested passing of accounts under rule 74.18, the applicant shall make a motion, in the same way as under rule 75.06, seeking directions for the conduct of the mediation. O. Reg. 290/99, s. 2.


(2) The notice of motion shall be served within 30 days after the last day for serving a notice of appearance. O. Reg. 290/99, s. 2.


(3) The motion may be combined with a motion under rule 75.06. O. Reg. 290/99, s. 2.




(4) On the hearing of the motion under this rule, the court may direct,

(a) the issues to be mediated;

(b) who has carriage of the mediation and who shall respond;

(c) within what times the mediation session shall take place;

(d) which parties are required to attend the mediation session in person, and how they are to be served;

(e) whether notice is to be given to parties submitting their rights to the court under rule 75.07.1;

(f) how the cost of the mediation is to be apportioned among the designated parties; and

(g) any other matter that may be desirable to facilitate the mediation. O. Reg. 290/99, s. 2.


(5) In a contested passing of accounts the court shall, on the hearing date specified in the notice of application, deal with the matter as if subrule (4) applied. O. Reg. 290/99, s. 2.




(6) If there is non-compliance with a direction given under subrule (4) or (5), the matter shall be referred,

(a) in the City of Toronto, to a judge; and

(b) in the City of Ottawa and in the County of Essex, to a judge or a case management master


The judge has the discretion to make directions therefore as to the payment of the mediation, which in my respectful submission should unless the parties agree to the contrary, be borne equally by the parties such that each party has a vested interest in the success or failure of the mediation. 


In an unreported decision in the matter of the Estate of Ruth Acker, deceased, Justice O'Marra made such an endorsement wherein he ordered:

"Further to submissions made on February 1 ,2012 on a contested adjournment application and after review of written submissions as to payment of costs of the mediator in respect of the mandatory mediation pursuant to Rule 75.1of the Rules of Civil Procedureit is here by ordered that one-half of the mediator's costs should be paid by Sidney Acker and the remaining one-half of such costs to be paid jointly by Bonnie Steinberg and John Acker..."


In regions where there is no mandatory mediation provision, the court often asks of counsel what its jurisdiction is to make a mediation order, absent agreement of the parties.


In my submission, Rule 1.04(1), (1.1) and (2) provide the court with the authority and jurisdiction to make any order that would secure the just and most expeditious and least expensive determination of a matter.  Moreover, and particular where matters are not provided for in the rules. Rule 1 gives the court the authority to determine by analogy to them.


The Courts of Justice Act, section 146, confers jurisdiction on a Court, a Judge, or a Justice of the Peace, in the absence of express provisions for procedures for its exercise in any act, regulation or rule, be exercised in any manner consistent with the due administration of justice.


Since the rules are to be interpreted liberally to ensure the most efficient determination of a proceeding, and applying an overarching principle of interpretation in applying the rules, the court shall make orders and give directions that are proportionate to the importance and complexity of issues and the amount involved in the proceeding.


Of course, the parties who do not wish to mediate, whether ordered to or not, may make no headway.  This is obviously a consideration which must be addressed. However, with estate matters, mediation can be a very effective tool for resolution. 


It is unclear why the mandatory mediation rules have not been expanded and applied across Ontario in respect of estates, and estates related matters.


To access information on estate mediations, conducted by mediators, Kimberly A. Whaley and Brian Wilson, please access our website at: estatemediators.ca: www.estatemediators.ca

The Law


1. Dhingra v Dhingra, 2011 ONSC 3741 &  Dhingra  (Re), 2011 ONCA 799 (CanLII)


Link to: Dhingra v Dhingra, 2011 ONSC 3741 


The Globe and Mail, Wednesday, April 25, 2012, on page A11,, ran an article entitled "Appeal", with the headline: "Insane killer entitled to victim's life insurance, court rules." Click to read.


The application judge, the Honorable Madam Justice Pollak, made an endorsement concerning the application brought by Ved Parkash Dingra, as Applicant, claiming proceeds of an insurance policy of his deceased ex-wife. The Applicant was charged with second degree murder in the death of his wife. 


The Applicant was ultimately found not criminally responsible by reason of a mental disorder.


The Insured approved payment of the insurance proceeds under the policy to the Applicant.


After such approval, the administrator of the Estate advised the Insurer that the proceeds should be paid to the Estate. 


Since there were conflicting claims for the insurance proceeds, the Insurer brought an application pursuant to section 320 of the Insurance Act, and as a result the insurance monies were paid to the order of the Accountant of the Superior Court.  The circumstances of the death of the Applicant's wife, were set out in a decision of Justice Locke.


In this case the Applicant was named on the policy as the beneficiary.  The administrator of the Estate challenged the Applicant's right to claim the proceeds pursuant to the "public policy rule" that a person who wrongfully kills another, will not be allowed to enjoy profit resulting from the act of killing.  The case relied upon was the case of Oldfield v. Transamerica Life Insurance Co. of Canada, 2002 SCC 22 (CanLII), 2002 SCC 22, [2002] 1 S.C.R. 742. In addition, the administrator relied on provisions under the Civil Remedies Act, 2001, S.O. 2001, c.28, which support the public policy rule.


The Honorable Madam Justice Pollak found as set out at paragraph 16 of her judgment: "the law is clear that there is no judicial support in Canada for the position taken by the Applicant that he is entitled to the insurance proceeds. I find that the public policy rule applies in this case to disentitle the Applicant from receiving the insurance proceeds of the policy... I dismiss the application on that basis."


The Ontario Court of Appeal however, reversed the decision on April 24, 2012, in the judgment linked herein, wherein the court summarized the issue at paragraph 1 of its decision as follows:


"This appeal concerns the rule of public policy that a person who kills another cannot share in the deceased's estate. The principal issue in this appeal is whether that rule applies where the beneficiary, in this case of an insurance policy, was found not criminally responsible on account of mental disorder in the death of the deceased. A second issue is the role played by the Civil Remedies Act. The application judge Pollak J. held that the public policy rule applied."


The Court of Appeal did not agree with Justice Pollak and allowed the appeal.


The Ontario Court of Appeal opined that the public policy rule set out in the cases of Nordstrom and Re Dreger (1976), 12 O.R. (2d) 371, and the person who is not guilty by reason of insanity, now termed not criminally responsible on account of mental disorder, is not prevented from taking under an insurance policy.  The court analyzed the question of whether the rule of public policy could be said to have been buried, because of the intervention of the Civil Remedies Act.


The court therefore reviewed the Criminal Code and its analysis, and Public Policy Law, to conclude that the Public Policy Rule does not prevent the applicant and appellant on appeal from receiving the proceeds of the insurance money. 


The Ontario Court of Appeal further reviewed the relevant provisions from the Civil Remedies Act, at sections 1, 2, 3, and 17, accepting an indication that public policy in Ontario favours preventing persons from profiting from their crimes, and extending to persons found not criminally responsible by reason of mental disorder.  The court however, opined further that the Civil Remedies Act did not supplant the common law role of public policy, that does not prevent an accused from taking under an insurance policy or a Will.  The court stated that the Civil Remedies Act itself indicated that the rule ought not to be applied automatically. The court analyzed the common law rules and the interaction of the Civil Remedies Act, stating that they served different functions. The court concluded at para 33, that there were competing public policies:


"Thus, there are competing public policies. On the one hand, the common law, reinforced by the policy as explained in Winko, is that an NCR accused is neither morally nor legally responsible for the death and therefore should be entitled to take under an insurance policy in which he or she is a beneficiary. On the other hand, there is the reflection of the public policy in the Act favouring the view that proceeds of crime in the hands of an NCR accused may be forfeited to the Crown."


The Ontario Court of Appeal therefore reconciled the competing policies at paragraph 34, as follows:


"In my view, the way to reconcile these competing policies is to allow the common law and the Act to each operate in their own spheres. That the legislature has so recently turned its mind to the question of criminals profiting from their crimes and not sought to wholly abrogate the common law rule suggests to me that the legislature intended to leave the common law rule intact. The legislature has expressed public policy in the province but limited forfeiture to applications made by the Attorney General."


The court finally concluded at para 35:


"The common law rule does not prevent the appellant from receiving the proceeds of the insurance policy. However, it is open to the Attorney General to bring an application under s. 3 of the Act. I note that s. 4 gives the Attorney General the right to apply for any number of interlocutory orders to safeguard any "property" pending an application under s. 3. If such an application were brought, the court would determine whether it would clearly not be in the interests of justice to forfeit the proceeds to the Crown."


On disposition the court allowed the appeal, and set aside the order of the application judge granting the application and order that the money deposited with the Accountant of the Superior Court of Justice together with interest accrued thereon, be rightfully payable to the appellant. 


Notably, the Attorney General was given notice of the application and the court stayed the order made for 30 days to give the Attorney General time to consider whether he wishes to apply for an interlocutory order under section 4 of the Civil Remedies Act.


With respect to costs, the court was of the view that it was not a case for costs.


2. Another Summary Judgment Case: Barker Estate v Walsh, 2012 CarswellOnt 4364, 2012 ONSC 1694


Link to: Barker Estate v Walsh, 2012 CarswellOnt 4364, 2012 ONSC 1694


In this summary judgment motion brought by the Defendant pursuant to rule 20.01(3) of the Rules of Civil Procedure, the Moving Party on the summary judgment, took the position in response to an argument made by the estate trustee, that there was no verbal agreement as between the deceased who was her common law partner, and with respect to the repayment of common expenses.


The estate alleged that the Defendant entered into a verbal contract with the deceased, whereby she would continue to pay all of the common expenses.


The estate took the position in its application that the agreement did not have to be in writing, since it was not finalized at the time of Walter's death and in essence was an oral agreement.


The court did not accept this argument, finding that the agreement to pay common expenses had to be in writing in order for it to be enforceable. The court concluded that even if there was an oral agreement between the deceased and the Defendant, it was not binding since it was a domestic contract that was not made in writing signed by the parties and witnessed, and accordingly, summary judgment was granted, and the action dismissed.


This is another summary judgment motion brought in the estates context that was successful. 

More Elder Law Resources


There is a new American Bar Association study focused on elder abuse initiatives and enhanced access to justice for victims. Click here to view the ABA Elder Abuse section on their website.


Of particular interest, is an article on the website about whether bank tellers may lawfully report suspected abuse. 

Upcoming Programs


B'Nai Brith - Public Policy: Tataryn Ontario , Summary Trial

June 5, 2012 

Kimberly A. Whaley, Speaker

Info: http://www.bnaibrith.ca/index.html 


CLC CBA Vancouver, Blended Family Presentation: When Once is not Enough: Predatory Marriages

August 12-14, 2012

Kimberly A. Whaley, Speaker

Info:  http://www.cba.org/CBA/sections_elder/main/


LSUC: The Administration of Estates 2012

September 13, 2012, Web repeat October 23, 2012

Chair, Kimberly A. Whaley


Canadian Centre for Elder Law (CCEL) 2012 World Elder Law Study Group Conference: Advocacy and Aging: From Storytelling to Systematic Change

November 15, 2012
Vancouver, B.C.  


LSUC Estates & Trusts Summit

November 1, 2012

Estate Claims Arising out of Remarriages


The World Congress on Guardianship / AGAC conference

Mid-October 2012

Info: http://agac2012.conorg.com.au/


LSUC Spring Program, 2013

Spring Program on the Annotated Passing of Accounts


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This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


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WEL News
Case Law Update
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Contact Info

10 Alcorn Avenue, 

Suite 301
Toronto, ON, M4V 3A9
Tel: (416) 925-7400 
Fax: (416) 925-7464


Kimberly A. Whaley
C.S., TEP, LL.M.
(416) 355-3250

Mark Handelman
(416) 355-3254

Ameena Sultan
(416) 355-3258


Amy Cull
(416) 355-3256


Deborah Stade
(416) 355-3252


Bibi Minoo
(416) 355-3251


Michelle Shikatani
(416) 355-3255

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Whaley Estate Litigation