Whaley Estate Litigation
 Whaley Estate Litigation Newsletter Vol.3 No. 2 May 2013



Thank you for your continued feedback, comments, enquiries and contributions that 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
  • Mediation
  • 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
  • Section 3 Counsel under the Substitute Decisions Act


Please Enjoy, 


Kimberly A. Whaley
Whaley Estate Litigation



1. Solo and Small Firm Conference May 22-23


Mark Handelman presented at the Solo, Small Firm Conference last week on a panel with Jordan Atin, Ken Cole and Cheryl Goldhart on the topic of Family Law and Will and Estates Law.  


Click here to download the paper written by Kimberly Whaley


2. The Advocates Quarterly, Volume 41, Number 1, April 2013


Albert Oosterhoff, Professor Emeritus, UWO, was published in Advocates Quarterly last month, in respect of his paper entitled: "Indemnity of Estate Trustees as Applied in Recent Cases".


This paper is a must read for a focused reconciliation of trustee indemnification principles and recent case law.


3. Estate Trust Pension Journal, Volume 32. No. 3, May 2013


Kimberly Whaley's article, co-authored with Ameena Sultan, "Capacity and The Estate Lawyer: Comparing the Various Standards of Decisional Capacity" was published in the ETPJ this month.


4. Money & Family Law News Letter, Volume 28, No. 1, January 2013


Benjamin D. Arkin's article entitled: "If You Survive Me by 30 Days: A Case Comment on Barbeau Estate" was published in January. 


Click here to view a copy of the article




1. In the matter of the Health Care Consent Act (the  "HCCA"), S.O. 1996, c.2, Sch. A as amended, Consent and Capacity Board (the "CCB") Decision rendered April 17, 2013, Docket 3838, File #: HA-12 5027 and HA-12-5028


In this recent matter before the CCB, the issue being argued involved a motion for an Order removing Counsel for the client/patient (the subject matter of the proceedings).


The argument involved allegations of conflict of interest since the counsel representing the patient/client had put forward her own beliefs and views, as opposed to those of the client/patient.


Moreover, the argument for Counsel's removal also included that the counsel was not retained since it was admitted by the counsel that no instructions could be obtained from the client.


The hearing was commenced on an application by the patient's doctor. Counsel injected views in advising the doctor which were counsel's own views and not those of the client. The CCB determined that this was inappropriate given the views were proffered without the client's instructions.


The CCB ordered counsel be removed pursuant to section 81 of the HCCA and ordered new counsel for the client/patient and the application to start anew. The panel also recused itself and a new panel ordered to be constituted to hear the matter.


Generally speaking, counsel retained to act pursuant to section 81 of the HCCA and similarly section 3 of the Substitute Decisions Act, have a very careful role to play in advocating for clients where capacity is at issue in a proceeding.


Counsel cannot act "in the best interests" of a client, nor can counsel substitute its own views for the client -this is not counsel's role.  For a comprehensive look at this issue, read "Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed under Section 3 of the Substitute Decisions Act, 1992" Kimberly A. Whaley and Ameena Sultan, Advocates Quarterly, Volume 40, Number 3, November 2012


2. Digital Assets and Digital Accounts


Estate administration and planning today necessarily must include considered thought regarding digital assets and digital accounts.  Last month, Benjamin Arkin presented a paper by Kimberly Whaley and Erin Cowling entitled: "Digital Life After Death: the Next Level of Estate Planning and Estate Litigation".   (Click to download the paper)


The paper highlights some of the potential litigious issues concerning digital assets and fiduciary liability.


It also reviews some recent court decisions. There is not a great deal of comprehensive legislation governing digital asset management after death.


In Canada, there is no specific legislation dealing with digital assets and digital accounts. Privacy law legislation however plays a part and will do so in the future, since privacy laws do protect personal information after death.


Protection of digital accounts and assets necessarily means taking stock of what you have and then subsequently planning with the audit conducted.  The audit must be updated periodically.


In the NAELA Journal,  National Academy of Elder Law Attorneys, Volume 9, Spring 2013, Number 1, appears an article by Gerry W. Beyer, entitled "Digital Planning: The Future of Elder Law" which is an instructive article on what is happening in the United States concerning digital planning.


The article addresses: the digital world, access, accounts, assets, social media, financial accounts, business accounts: the importance of planning for digital assets, including preventing identity theft; relevant legislation in various states in the U.S.A., and proposed state legislation; drafting documents, Wills, Powers of Attorney and Trusts, taking into consideration digital assets and accounts; obstacles to planning; and the future of digital planning.


The article addresses first generation statues enacted in certain U.S. states. Planning suggestions include taking a comprehensive inventory, drafting Wills, Powers of Attorney and in particular, trusts, to retain flexibility with respect to digital asset and account planning.


Similarly, in this month's STEP Journal (May 2013, pp 74-77) David Evans and Elaine Gray discuss the treatment of Digital Assets under Guernsey's unique Image Rights legislation and the impact and importance of planning. 


Whether you litigate or are a drafting solicitor, or do administration, becoming familiar with digital assets and accounts is now becoming more important in the context of estate law.


3. Schwartz v. Schwartz




Justice O'Connell, in January 2013, released an endorsement and reasons. On April 18, 2013, Justice O'Connell released additional reasons concerning costs.


When advising clients, predictability as to costs can often be difficult given the wide discretion afforded to a judge.


Increasingly, we are seeing awards of substantial indemnity costs being ordered and even full indemnity costs being awarded where conduct warrants it in the judge's discretion.


Schwartz v. Schwartz is one such case. Substantial indemnity costs were sought by one of the parties who had served three offers to settle, all of which were not accepted. The judge determined having regard to the offers, and the findings of the court, that the costs submitted were fair and reasonable and ordered costs payable to Vast on a substantial indemnity basis.


The position of Ms. Schwartz was that she should not bear any costs ordered against her since she alleged to be impecunious. Moreover, Ms. Schwartz's income was alleged to be nominal. Other factors included Ms. Schwartz supports the child of the marriage and rules of the Family Law Court which cite financial circumstances as a factor in determining costs under rule 57 of the Rules of Civil Procedure. The offers to settle made by Vast were argued not to be in conformity with the Family Law Rules.


The court, relying on Boucher v Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (Ont. C.A.) and reiterated in Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 45084 (Ont. C.A.), (2002) 164 O.A.C.  234 (Ont. C.A.), determined appropriate costs in this case, which included full reimbursement of disbursements and HST;  a review of clear dated dockets, the offers to settle which the court viewed as fair and reasonable, and conduct.


On conduct, the court made reference to the fact that Ms. Schwartz made an appearance in Family Court and obtained a consent order while an appeal was still pending, which transferred Mr. Schwartz' interest in the property to her exclusively. Ms. Schwartz then used this fact to try to dislodge Vast from the Court of Appeal which was to determine the trust interest of Ms. Schwartz in the property. The court viewed that these actions increased the complexity of the motion before the court.


The court described Ms. Schwartz as having acted with blind zeal. "Her conduct, I find, continued to exhibit the consistency of disregard for the court's process. it was egregious... this conduct further undermines Ms. Schwartz' suggestion that she should not be held accountable for the costs   incurred by Vast for the motion heard on July 31, 2012, because of her alleged impecuniosity".


In the result, not only did the court order costs on a substantial indemnity scale payable by Ms. Schwartz to Vast, but the order made was that costs shall be paid within 30 days.


While costs are always difficult to determine and to speculate on when advising a client, certainly conduct is increasingly being viewed by the courts as a means to, not only provide some relief to litigants who are caught up in proceedings where one party's conduct is only serving to escalate costs, but it is also sending a clear message to litigants.  


Hopefully, this clear message continues, such that litigants and counsel alike are aware of the severe costs penalties that can follow.  Too, hopefully, these sorts of costs orders or awards will act as a deterrent such that  parties have no incentive to delay proceedings through conduct. 



B'Nai Brith, "When Does Estate Planning Cross the Line and Become a Fraudulent Preference or Conveyance?"

June 4, 2013

Speaker, Kimberly A. Whaley, Debra Stephens et als

Info: http://www.bnaibrith.ca

Carswell Webcast, Predatory Marriages
Kimberly A. Whaley co-presenting with Professor Albert Oosterhoff
June 4, 2013

STEP, 15th National Conference

Metro Toronto Convention Centre

June 10-11, 2013

Speaker, Kimberly A. Whaley on panel with Nancy Golding and Michael  Kerr on Limitations Act issues, costs on passing of accounts and legislative changes

Info: http://www.step.ca/2013conference


LSUC 2nd Annual Civil Litigation Summit

June 11, 2013

Mini Law School - Update in Estate Litigation

Speaker:  Kimberly A. Whaley

Info:  http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0060401


The Ontario Network for the Prevention of Elder Abuse

June 12, 2013

"Aging in Northumberland with Respect , Dignity and Protection"

Kimberly Whaley, Keynote Speaker: "Planning for Future Disability, Illness and Incapacity 


CBA, National Conference, Saskatoon, Saskatchewan

August 18-20, 2013
Speaker: Kimberly A. Whaley, Roundtable discussion

LSCU, The Administration of Estates 2013
September 19, 2013
Chair, Kimberly A. Whaley
International Istanbul Initiative on Ageing

Istanbul, Turkey

Speakers, Kimberly A. Whaley, Heather Hogan and Mark Handelman

Info: http://www.ifa-fiv.org/


LSUC, Estates and Trust Summit

November 11-12, 2013, "Aging and the Fractured Family"

Speaker, Kimberly A. Whaley

AJAG Professional Development & Women's Leadership Series

January 14, 2014

Speakers:  Kimberly Whaley and Brian Wilson

Info: http://ajag.ca/Course/ec508e7f-45eb-4f9a-8355-ac28625e768b


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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.
(416) 355-3250
Mark Handelman
Firm Counsel
(416) 355-3254

Ameena Sultan
(416) 355-3258


Benjamin D. Arkin
(416) 355-3264 
JaŽl Marques de Souza


(416) 355-3266

Heather B. Hogan
(416) 355-3262
Deborah Stade
Office Manager
(416) 355-3252
Bibi Minoo
Estates Clerk
(416) 355-3251

Marylin Tait 

Legal Assistant

(416) 355-3255

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Whaley Estate Litigation