Whaley Estate Litigation
 Whaley Estate Litigation Newsletter Vol.3 No. 12 March 2014
 

   

    

HAPPY SPRING!!

 

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 Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Proceedings 
  • End of Life Decisions
  • Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Substitute Decisions Act, S.3 Counsel
  • Mediation 

 

Please Enjoy, 

 

Kimberly A. Whaley
Whaley Estate Litigation

I. WEL NEWS   

 

1. OBA Make a Power of Attorney ("POA") Social Network Campaign - Update

 

The OBA will be partnering with the Trillium Gift of Life Foundation.  April is "Be a Donor Month" which ties in very well with making April the OBA Make a POA month, which Kimberly Whaley is involved in.

 

Kevin Cheung will be running the Social Media aspect of our Make a Power of Attorney campaign. The plan will be for Kevin to send postings that can be then resent/share/posted during the month of April.   These will include links to tools available for our members on the OBA website, and hopefully create some traffic that media can pick up.

 

If you are prepared to retweet/repost/share, please contact Pascale Daigneault at: pascale.daigneault@gmail.com and let her know which of the following social medias addresses/handle you are prepared to use for this purpose. Kevin will then contact you at the address provided and need to be added to each of the social network that you are prepared to use for this purpose.

 

2. Baycrest Foundation Professional Advisory Board

 

Heather Hogan is now a member of the Baycrest Foundation Advisory Board.

 

3. The 2014 World Congress on Adult Guardianship

 

The 2014 World Congress on Adult Guardianship will be held in Arlington, VA., May 28-30, 2014. This is an international gathering of those involved in guardianship. It offers opportunities to learn and collaborate by bringing together those involved in adult guardianship, as well as aging, disability, and elder rights from around the globe.

 

Find out more about the 2014 World Congress on Adult Guardianship at:  http://worldcongressguardianship.org/

 

4. May 21, 2014 Annual NICE Knowledge Exchange

 

REGISTRATION IS NOW OPEN for this year's conference - May 21st, Hart House, University of Toronto.

 

This not-to-be-missed conference features an extraordinary lineup of speakers and presenters who are leaders and innovators in their field and who will be focussing on topical issues and challenges facing everyone in the field of aging.

 

Keynote address by Dr. Aex Jadad, MD, DPhil, FRCPC, FCHAS;  "On living a long and full life, with no regrets...."

 

Dr. Jadad, featured by Time Magazine as one of the new Canadians who will shape the country in the 21st century, is a leading researcher, physician, educator, entrepreneur, and public advocate.  His mission is to enable people to live full, healthy and happy lives through innovative global collaborative efforts facilitated by information and communication technologies.

 

THEME TEAM SESSIONS

 

Caregiving: Kinship Grandparenting with Betty Cornelius

Dementia Care: with Dr. David K. Conn

Dental Care: Taking the Bite out of Elder Abuse with Dr. Natalie Archer

Elder Abuse: Resident-on-Resident Abuse with Theresa Piccolo and Dr. Lynn McDonald

End-of-Life Care: Compassionate End of Life Care for Dementia Patients with Dr. Marcel Arcand

Ethnicity and Aging: Ethnic Differences in Acculturation and Health for Older Asians with Dr. Keith Chan

Financial Literacy & Economic Security: Fraud Prevention for Older Adults with Constable Patricia Fleischmann, Toronto Police Services

Law and Aging: The Rasouli Case at the Supreme Court:  Now Who Gets to Decide End of Life? Panel discussion with Kimberly Whaley, LLM,  Mark Handelman, LLB, MHSc (bioethics) and Marshall Swadron, LLB

Mental Health: Social Isolation with Elizabeth Birchall, MSW, Executive Director, COPA 

 

5. OBA. Law Reform, Predatory Marriages

 

Kimberly Whaley and Heather Hogan have been participating in Law Reform initiatives involving a focus group to address the increasing problems that arise out of predatory marriages.

 

6. STEP NYSBA 10th Annual International Estate Planning Institute, Spring 2014

 

Kimberly Whaley attended the 10th Annual International Estate Planning Institute on March 13-14, at the Crowne Plaza Times Square, New York, USA

 

http://www.step.org/ny-institute2014

II. LAW REVIEW: CASES AND OTHER LEGAL REVIEWS

 

Barnes Estate v Barnes

 

http://canlii.ca/t/g0wzd

 

This 2013 decision out of British Columbia involved a question as to the proper distribution under the Last Will and Testament (the "Will") of the deceased, and, a determination of whether certain non-biological children are or are not considered "issue" within the meaning of the Will.

 

Since biological relationship is raised as an issue, DNA testing orders issued for certain named parties. One party refused to comply with the testing order (Steven).

 

The court determined that 3 of the named parties, Kenneth, Jaymie and Steven could be included as "issue" within the meaning of the Will. The court even having had the benefit of DNA evidence as it related to Kenneth and Jaymie, but not Steven, was not convinced that the Administrator met the burden of proving that Jaymie and Kenneth were not the biological children of the deceased.

 

Background:

 

The following excerpted passages summarize the background and court history:

 

[...]

 

[8]           The testatrix Maymie Barnes' Will is dated June 19, 1992.  Pursuant to para. 3(3) of the Will, her estate is to be divided as follows:

 

(3)        To divide the residue of my estate equally between my two sons, Ernest Roy Barnes and Kenneth Earle Barnes or to pay or transfer all the said residue of my estate to the survivor if one of them shall predecease me PROVIDED that if any issue of such deceased son shall be living at my death such issue shall take in equal shares per stirpes the share of the residue of my estate to which such son of mine would have been entitled if living at my death.

 

[9]           Two questions were raised in the petition:

 

(a)        does the use of the word "issue" extend both to all surviving descendants of Ernest Roy Barnes and Kenneth Earle Barnes to any degree alive at the date of Maymie Barnes [sic], including her great grandchildren?; and

 

(b)        can the Administrators of the estate of Maymie Irene Barnes include the children of Kenneth Earle Barnes, specifically Jaymie Michelle Barnes and Steven Paul Barnes as members of a class of persons described in the Will as "issue of such deceased son"?

 

[10]        The first question has been answered by Myers J.  The second question is the one before this court on the petition.

 

[11]        On the application, Eric seeks a declaration that Jaymie and Steven are not "the issue of Maymie Irene Barnes and [are] not entitled to any inheritance as provided for in the Last Will and Testament of Maymie Irene Barnes".  In this regard, Eric submits that the evidence proves that Jaymie and Steven are not Kenneth Barnes' biological children.

 

[...]

 

[13]        The two sons named in para. 3(3) of the Will, Ernest Barnes and Kenneth Barnes, both predeceased the testatrix.

 

[14]        Ernest Barnes had two children, the applicant, Eric, and Diana Barnes ("Diana").  Eric has three children and Diana does not have children.  Diana is also an Administrator of the estate and does not join Eric in the application, nor does she support it.

 

[15]        All of the affidavit evidence makes it clear that Kenneth raised Jaymie and Steven as his children.  Jaymie and Steven were born in 1963 and 1961 respectively and would have been alive at the time the Will was written.  In his affidavit material, Eric acknowledges that Kenneth treated Jaymie and Steven as his children.  Among other evidence, Jaymie and Steven's mother Margaret Ruth Allen has sworn "... Eric David Barnes has sworn that my said children are not the biological children of Kenneth Earle Barnes.  I know of no basis for that allegation and I can say without doubt that both of my said children are the biological children of Kenneth Earle Barnes" (Exhibit D, Affidavit #1 of D. Barnes).  Further, in his Alcan Life Insurance Plan and in his Alcan pension Kenneth designated his beneficiaries Steven and Jaymie, whom he identified in both documents as his son and daughter (Affidavit #2 of Melanie Cheng).

 

[...]

 

[20]        On April 21, 2011, the Public Guardian and Trustee representing Eric's two minor children, filed an application wherein he sought an order for DNA testing of Jaymie and Steven, to determine paternity.

 

[...]

 

[22]        Both the petition and the application were heard on May 19, 2011.  It was argued on behalf of Eric at that hearing that the Will should be interpreted to mean that all lineal descendants of the testatrix inherit an equal share of the estate.  Eric argued that the estate should be divided between five living heirs; namely Eric, his three children, and his sister Diana, with the result that Eric and his three children would receive four-fifths of the estate and his sister Diana would receive one-fifth.

 

[23]        On May 11, 2011, Myers J. decided that the Will should be interpreted in a manner that the estate devolves only to the first living generation of the testatrix's lineal descendants.  Myers J. made no findings with respect to whether Jaymie and Steven were the issue of Kenneth, but gave leave to Eric to apply for an order compelling DNA testing.

 

[24]        As a result of Myer's J. order the Public Guardian and Trustee representing the great grandchildren no longer had standing in this matter.

 

[25]        An appeal was filed with respect to Myers J.'s decision but was moved to the inactive list since the Order was never filed and delivered to the Court of Appeal registry.

 

[...]

 

[29]        The Conclusion in the Orchid Cellmark report, signed by Dr. Danielle Desmarais, PhD, and another specialist, reads as follows:

Based on the analysis of the 8 genetic markers listed, Kenneth Earle Barnes cannot be the biological father of Jaymie Michelle Barnes.  Kenneth Barnes was excluded as being the father by the D3S1358 and FGA genetic markers.  The probability of paternity is 0%.

 

[...]

 

[35]        Every hearing that has come before the court regarding the construction of the testatrix's will, the argument did not centre on para. 3(3), and whether the Will, specifically the term "issue" in the para. was ambiguous.  Rather, the focus was on whether Jaymie and Steven had biological claim to their grandmother's estate.

 

[36]        As a result, in August 2013 I invited written submissions on the principles of the "armchair rule" as it applies to the case at bar.  I received submissions on behalf of Eric and on behalf of Jaymie in September 2013.

 

The Legal Analysis:

 

[37]        The general principles for interpreting a will are well summarized in Thiemer Estate v. Schlappner, 2012 BCSC 629 (CanLII), 2012 BCSC 629.  Justice D.J. Dardi wrote, starting at para. 45:

 

 

In construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence: Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII) , 2011 ONCA 493, at paras. 23-24; Theobald on Wills, 15th ed. (London: Sweet and Maxwell, 1993) at 199. It is a cardinal principle of interpretation that the testator's intention is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy: Perrin v. Morgan, [1943] A.C. 399 at 406 (H.L.); Re: Burke (1960), 20 D.L.R. (2d) 396 at 398-399 (Ont. C.A.).

 

Another fundamental tenet affirmed by an established line of authorities is that the court is to ascertain the expressed intention of the testator - the meaning of the written words used in the particular case - as opposed to what the testator may have meant to do when he or she made the will: Perrin at 406.

 

Earlier lines of authority endorsed an objective approach to will interpretation. However, modern jurisprudence recognizes that a strict literal approach can defeat the intention of the testator, thereby leading to unjust results: Law Reform Commission of British Columbia, Report on Interpretation of Wills, LRC 58 (Victoria, MAG, 1982) at 6. The liberal interpretive approach finds its roots in the seminal decision of the House of Lords in Perrin.

 

In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpreting wills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determining the testator's intention the courts have endorsed the analytical approach commonly described as the "armchair rule". The rule requires that the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator.

 

In Re: Burke, the Ontario Court of Appeal articulated the guiding principles which were cited with approval by our Court of Appeal in Davis Estate v. Thomas (1990) 40 E.T.R. 107 (B.C.C.A.) and Smith v. Smith Estate, 2010 BCCA 106 (CanLII) , 2010 BCCA 106, at paras. 18 and 28 respectively:

 

... Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

 

Although the primary source of evidence is the "four corners" of the will, the armchair rule entitles the court to look to extrinsic evidence to identify the surrounding circumstances known to the testator at the time the will was made which might reasonably be expected to influence the testator in the disposition of his or her property. The facts and circumstances that a court may consider include the occupation of the testator, the state of his or her property, and the general relationships of the testator to his or her immediate family and other relatives: Kaptyn Estate (Re), 2010 ONSC 4293 (CanLII) , 2010 ONSC 4293 at para. 38. The weight of the authorities demonstrates that the modern judicial approach to interpreting a will is to admit all the evidence regarding the surrounding circumstances at the start of the hearing and then to construe the will in the light of those surrounding circumstances. Ambiguities in the will may only become apparent in the light of the surrounding circumstances: Rondel at paras. 23-24.

 

Since the meaning of words in wills can differ so much according to the context and circumstances in which they are used, previously decided cases are of limited assistance except in so far as they may express general principles of construction. This notion has repeatedly been embraced by Canadian courts: Kaptyn Estate (Re) at para. 32; Perrin at 406; Re: Burke at 398.

 

Meaning of "Issue":

 

[38]        The questions before the court on both the petition and the application require the court to interpret the meaning of "issue" in para. 3(3) of the Will.

 

[39]        Eric has argued that "issue" must be interpreted to refer exclusively to biological heirs.  He submits that it is a legal term of art that necessarily connotes biological descent.  He submits further that there are no ambiguities with respect to the language used in the Will and in particular the word "issue".

 

[40]        In support of this, Eric points to the Estate Administration Act, Black's Law Dictionary, and the Oxford Online Dictionary.  The Estate Administration Act defines "issue" for the purpose of administering an intestate estate, saying:  "'Issue' includes all lineal descendants of the ancestor."  Black's definition of "descendant" says the plural, descendants, "means issue, offspring or posterity in general."  Black's also says "'Issue' within its normal usage in wills connotes at least all progeny or blood descendants".  The Oxford Online Dictionary defines issue as "children of one's own."

 

[41]        These authorities are not determinative of the matter.  In particular, the Estate Administration Act, by using the word "includes", provides only an inclusive definition, not an exhaustive definition, leaving the implication that "issue" can refer to persons other than biological descendants.  For example, it may be that "issue" in some contexts can refer to adopted children.  Moreover, the dictionary definitions of "issue" cannot be the end of the matter for the interpretation of a will.  To simply adopt a definition as provided by a law dictionary is contrary to the subjective approach recommended in Thiemer Estate, which requires courts to determine what the testator intended by her words.

 

[42]        In response, Jaymie suggests that she and Steven should be considered issue for the purposes of the Will, regardless of any finding with respect to their biological connection to Kenneth Barnes.  She suggests that "issue" does not always mean strictly biological descendants but can also include children who are treated as, or are assumed to be, biological children.  She asserts that the trend seen in recent developments has been to recognize that relations of blood are not of central importance with regard to family relationships and the entitlements arising from them.

 

[43]        Jaymie provides the case of Re Clark Trust, reflex, [1946] 3 W.W.R. 490, in support of her position.  In that case Dysart J. discussed the concept of lawful issue.  Justice Dysart held that "lawful issue" does not coincide in meaning with the term natural born child.  Rather, it refers to a child born into a marriage, regardless of its actual, biological parentage.

 

[44]        Against Re Clark, Eric provides M.A.O. v. Canada (Minister of Citizenship and Immigration), 2003 FC 1406 (CanLII) , 2003 FC 1406.  This was an immigration case in which Heneghan J. interpreted the word "issue" in the Immigration Regulations, 1978, S.O.R./78-172.  The word "issue" was included in the definition of "son" and "daughter".  Heneghan J. held at para. 69 that it "cannot be interpreted to include children who are cared for and raised as though they were the sons and daughters of particular adults, as well as those who are biologically related to such adults."  She then went on to say at para. 72 that "[f]amily law in Canada has not expanded the meaning of the term 'issue' to include both children who are biological descendants of their parents, as well as children who are treated as the sons and daughters of adults but without biological connection."

 

[...]

 

[46]        Based on the authorities provided to me, including the additional authorities in Eric's submissions, I cannot say that the meaning of the word issue is clear and unequivocal.  The protracted nature of these proceedings is evidence of that.  I am not satisfied that "issue" can only refer to blood descendants, as Eric maintains.  Rather, the meaning of "issue" is ambiguous and must be interpreted in the context of this particular Will.

 

[47]        Both parties agree that there is no evidence surrounding the intention of the testatrix, either from the drafter of the Will or witnesses who attended it.

 

[48]        The evidence shows that the Barnes family always assumed Jaymie and Steven were Kenneth Barnes' children and the testatrix's grandchildren.  Furthermore, the parties agree that Kenneth always held Jaymie and Steven out as his children and treated them in all ways as his children.

 

[49]        The question regarding this Will is whether or not, in specifying that a portion of her estate shall pass to Kenneth Barnes or his issue, the testatrix had in mind that it would pass to Jaymie and Steven as members of the class of Kenneth's issue.  Jaymie and Steven were both alive when the Will was written.  She was well aware of their existence.  Jaymie would have been approximately 29, and Steven would have been approximately 31.  Based on the evidence, it appears clear that she would have believed that Jaymie and Steven were Kenneth's biological children.  If that is so, then she must have intended that they would inherit should Kenneth predecease her.

 

[50]        There is some speculative evidence, almost entirely composed of hearsay, to the effect that Kenneth had at one point undergone a surgical procedure that would likely have left him sterile.  There is also a medical letter which does not meet the requirements for an expert opinion that suggests that Kenneth may have been sterile.  However, even if I assume the testatrix believed that Kenneth was sterile and thus could not father children of his own, then I would have to conclude that she understood "issue" to include Kenneth's children regardless of whether he fathered them -- otherwise she would not have referred to Kenneth's issue.  I also note that, besides the speculative character of the evidence regarding sterility, there is nothing that would allow me to determine what among those speculations might have been in the contemplation of the testator at the time the Will was made.

 

[51]        In any event, the fact that the testatrix referred to Kenneth's issue makes it plain that she believed he could have biological children, and moreover that he actually had children, including Jaymie and Steven.

 

[52]        Both the Will and the surrounding circumstances known to the testatrix make it clear that the testatrix intended that, if Kenneth were to predecease her, his children, including Jaymie and Steven, would inherit in his stead.

 

[53]        The petitioners asked: "Can the Administrators of the estate of Maymie Irene Barnes include the children of Kenneth Earle Barnes, specifically Jaymie Michelle Barnes and Steven Paul Barnes as members of the class of persons described in the will as 'issue of such deceased son'?"

[54]        The answer to the Petitioners' question is yes -- Jaymie and Steven are included in the reference to Kenneth's issue in para. 3(3) of the Will.  This finding holds irrespective of their biological lineage.

 

On DNA Evidence, the court opined as follows:

 

[55]        Eric's request that the court declare that Jaymie and Steven are not Kenneth's issue on the basis of evidence that they are not his biological children presupposes that "issue" refers exclusively to biological descendants.  My finding with respect to the meaning of issue renders the DNA question moot.  However, as the parties made extensive submissions on the DNA evidence and the question of Jaymie and Steven's biological lineage, I will now briefly address those points.

 

Burden of Proof:

 

[56]        There was some argument over whether there is a presumption of paternity in this case.  Section 26 of the Family Law Act, S.B.C. 2011, c. 25, outlines a number of situations in which a male person is presumed to be a child's biological father.  If the Family Law Act applies retrospectively for the purpose of interpreting Maymie Barnes' Will, then it would create a presumption of paternity.

 

 

[57]        Eric Barnes argued that "there is no presumption of paternity with respect to wills actions."  He pointed to Lansing v. Richardson, 2002 BCSC 262 (CanLII), 2002 BCSC 262, as authority.  In that case, the plaintiff claimed that she was entitled to a share of the testator's estate pursuant to the Wills Variation Act because she was a biological daughter of the testator.  However, the evidence of paternity was inconclusive. Hutchinson J. held at para. 18:

Under the Wills Variation Act paternity must be established before a legal claim can be recognised:  the burden under the Wills Variation Act is on the plaintiff ... to establish paternity on a balance of probabilities, and under the Act there are no legislated presumptions, so the common law burden of proof applies.

 

[58]        In my view, Hutchinson J.'s ruling is best understood as an example of the general rule that the plaintiff has the burden of proving his or her case, or that the party advancing a claim has the burden of proving it.

 

[59]        In the present application, Eric, the applicant, occupies the position of a plaintiff and would have the burden of proving that Jaymie and Steven are not Kenneth Barnes' biological children.  I find that it is unnecessary to determine whether the Family Law Act applies.

 

Discussion of the DNA Evidence:

 

[60]        The DNA analysis results from Orchid Cellmark showed two non-matches out of eight genetic markers tested.

 

[61]        According to Dr. Desmarais' report, the paternity test that Orchid Cellmark conducted compares a child's DNA profile with that of an alleged father to check for evidence of genetic inheritance.  [Tab 20, Exhibit A, p. 2]

 

[62]        Dr. Desmarais' report says that if the child and alleged father share an allele at each marker, then the alleged father cannot be excluded as the biological father.  In that case, depending on circumstances, there will be a very high probability that the person is the child's biological father.  On the other hand, if the child and alleged father do not share an allele at a given marker, then this non-match indicates a 0% probability of paternity.  [Tab 20, Exhibit A, p. 2]

 

[63]        However, Dr. Desmarais says there must be at least two DNA non-matches between the alleged father and child to report a paternity exclusion, according to industry standards.  [Tab 20, Exhibit A, p. 3]

 

[64]        Eric obtained samples of DNA purportedly of Kenneth Barnes from a hospital in Kitimat, B.C.  Correspondence from the hospital indicates that the DNA samples were collected during three different surgical procedures that Kenneth Barnes underwent in 1987, 2003, and 2005.  Jaymie sent her sample to Orchid Cellmark in accordance with a court order.

 

[65]        Eric's argument is that the test results show two non-matches, which according to industry standards is sufficient for a paternity exclusion.  Dr. Desmarais' opinion was that the test results prove that Jaymie is not Kenneth Barnes' biological child.

 

[66]        Eric says that DNA testing is "notoriously reliable" and the test results easily meet the civil standard of proof on a balance of probabilities.

 

[67]        In response, Jaymie claims there are various weaknesses with this DNA evidence.

 

[68]        Jaymie points out that the Client Information and Consent form for Kenneth Barnes was not signed by someone with legal authority to sign -- for example, Kenneth's estate -- but rather by Eric's lawyer.  The form asks two questions:  "Did the donor of this specimen have a blood transfusion three months prior to the sample collection?"  And, "Has the donor of this specimen ever had a bone marrow or a stem cell transplant?"  Kenneth Barnes' Consent form does not answer those questions.  Jaymie argues that it is possible that Kenneth did in fact have a blood transfusion three months prior to the samples being taken, since the samples were apparently taken during surgical procedures.  She says it is possible that any such blood transfusion could have contaminated the samples and undermined the reliability of Orchid Cellmark's tests.  On that point, Dr. Desmarais said whether Kenneth had a blood transfusion was not relevant in this case because her tests used tissue samples, not blood samples.

 

[69]        Jaymie also points out that correspondence with Orchid Cellmark indicates that Kenneth Barnes' DNA was "exceedingly difficult to work with", which provides further cause for concern over the reliability of the tests.

 

[70]        Jaymie raised a number of concerns over whether Dr. Desmarais' report is in compliance with the rules for expert reports and opinion evidence.  She argued that the report does not make clear the extent to which Dr. Desmarais was herself involved in the work of collecting the DNA samples and performing the tests, as opposed to members of her staff.  Jaymie argued that at least one person whose qualifications were not established participated in the testing process and signed the DNA test results.

 

[71]        Jaymie also argued that there are gaps in the chain of custody and the evidence regarding the identity of the DNA samples, which are supposed to have come from Kenneth Earle Barnes.  She says the Consent form that was sent to the hospital in request of Kenneth's DNA samples merely identified the patient by his name, Kenneth Earle Barnes, and that he was a Caucasian male.  There is no indication that the hospital was supplied with further information that would afford greater certainty with respect to the identity of the patient in question, such as government issue ID or a health card number.

 

[72]        Moreover, in Mr. Hutchison's cross-examination of Dr. Desmarais, he directed her attention to some articles that conclude that it is inadvisable to report a paternity exclusion with only two inconsistencies.  For example, Mr. Hutchison read the following passage from an article by C.H. Brenner in the International Congress Series.  The excerpt reads:

 

Taking into account the predominance of true over false trios in paternity laboratories, cases with two inconsistencies are false trios by a margin of only 2:1.  Routinely excluding paternity based on two inconsistencies is thus a very poor policy.

 

[73]        When asked if she agreed with that conclusion, Dr. Desmarais did not offer a clear answer one way or the other, admitting the possibility that mutations can affect the reliability of a test but not expressly disagreeing with the author that an exclusion on the basis of two inconsistencies can be poor policy.

 

[74]        Though I accept Eric's general point that DNA evidence is often highly reliable, the reliability of an analysis cannot be assumed but must be scrutinized by the court.  DNA evidence is only as reliable as the processes behind it.  In this case, there are genuine questions regarding the reliability of the steps leading to the DNA analysis and issues raised in the cross-examination of Dr. Desmarais.

 

[75]        Further, in my view the reliability of the DNA evidence must also be considered in light of the sworn evidence of Margaret Ruth Allen, Jaymie and Steven's mother, which states unequivocally that Kenneth Barnes is Jaymie and Steven's father, both of whom were born while she was married to and together with Kenneth Barnes.

 

[76]        Ms. Allen's affidavit and other evidence in supports sets up a conflict in the evidence.  In light of that conflict and the concerns Jaymie has raised regarding the DNA evidence, I am not satisfied that Eric has established that Jaymie is not Kenneth Barnes' biological daughter.  In my opinion, it would be inappropriate to be satisfied on that difficult question of fact based on the materials before me.

 

[77]        In the result, I cannot find that Eric has proven on the application that Jaymie is not Kenneth's biological child.  In all of the circumstances, I decline to draw an adverse inference with respect to Steven.

 

For more information and related cases on the use of DNA testing in contested estate matters see Kim Whaley's articles "The use of DNA Testing in Contested Estate Matters", Estates and Trusts Pension Journal, Volume 23, Number 2, April 2004", and which is posted on our website: click here to view; and: "Life After Death: Modern Genetics and the Estate Claim", Estates and Trusts Pension Journal, Volume 23, Number 2, March 2009, and which is posted on our website:  click here to view.

III. UPCOMING PROGRAMS

 

1. STEP Canada - Toronto Branch

April 17, 2014

Building Your Competencies Beyond Your Professional Skills

Featured Speaker: Kimberly Whaley

http://www.step.ca/programs.asp?b=Toronto

 

2. OBA, Trusts and Estates Law

April 22, 2014

Dinner with Your Honourable Estate List Judges

Chair, Ameena Sultan

http://www.cbapd.org/details_en.aspx?id=ON_14TRU0422T


3. LSUC - The Six-Minute Estates Lawyer 2014

April 29, 2014 - Responsibility of Solicitors Facing Undue Influence

Speaker:  Kimberly Whaley

http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE14-0040701

 

4. STEP Canada - Toronto Branch

May 8, 2014

Estate Trustee Liability

Speaker: TBA

http://www.step.ca/programs.asp?b=Toronto

 

5. Senior Practitioner's Forum, Estate Planning and Litigation Forum

May 12-14, 2014

Langdon Hall, Cambridge, Ontario

Speaker: Kimberly Whaley, Predatory Marriages

http://www.eplforum.ca/

 

6. OBA

May 15, 2015

Real Estate and the Elderly Client 

Speaker: Ameena Sultan 

  

7. NICE Knowledge Exchange

May 21, 2014

Law and Aging - The Rasouli Case at the Supreme Court:  Now Who Gets to Decide End of Life? Panel Discussion

Kimberley Whaley, LLM,  Mark Handelman, LLB, MHSc(bioethics) and Marshall Swadron, LLB

http://www.nicenet.ca/ke-home

 

8. World Congress on Adult Guardianship

2014 Arlington, Virginia USA

May 28, 2014 - May 30, 2014

www.WorldCongressGuardianship.org

 

9. B'Nai Brith Seminar

June 2, 2014 - Rasouli Case and the issues arising from same

Speaker:  Kimberly Whaley

 

10. Osgoode Professional Development, Webinar

Estate Litigation Arising from  Later  Life Partnerships

June 5, 2014

Presenters: Kimberly Whaley, Heather Hogan 


11. STEP CANADA - 16th National Conference

Toronto

June 16-17, 2014

http://www.step.ca/2014conference.asp  

 

12. Baycrest Foundation, Professional Advisory Group

June 17, 2014, Elder Care and/or Estate Planning

Speaker:  Kimberly Whaley and Dr. Gordon

baycrest.org/give

 

13. CBA Webinar

Protecting Older Adults from Financial Abuse: Are We Doing Enough?

June 18, 2014

Speaker: Kimberly Whaley and Heather Hogan

 

14. 2014 CBA Elder Law Legal Conference

St. John's, Newfoundland

Until Death Do Us Part? Estate Claims Arising Out of Re-Partnerships:

A Cross-Provincial Perspective,  August 15-17, 2014

Speakers: Kimberly Whaley and Heather Hogan

http://www.cba.org/newfoundland/main/Home/

 

15. Osgoode Professional Development, Webinar

September 11, 2014   

Fiduciary Accounts: Preparing, Passing, and Reviewing

Presenters: Saara Chetner, Heather Hogan, Birute Lyons

 

16. Practice Gems: The Administration of Estates 2014

September 23, 2014

Chair: Kimberly Whaley

Speakers: Clare Burns;  Archie Rabinowitz and David Lobl;   Jordan Atin;  Laura Tyrrell; Gwen Benjamin; Lee  Ferrier , Hershel Gross, Tara Stead, and Barbara Krever

 

17. STEP Winnipeg

October 23, 2014

Speaker: Kimberly Whaley , Predatory Marriages

 

18. LSUC Estate and Trust Summit  2014

November 3, 2014

Speaker: Kimberly Whaley

 

19. STEP, Global Congress , Miami

Mandarin Oriental Miami

November 6-7, 2014

Kimberly Whaley, Attendee

http://www.stepglobalcongress.com

 

20. STEP Canada

February 11, 2015

Financial Abuse: Detection and Intervention

Chair: Kimberly Whaley  

IV. Newsletter Archive

Past issues of our Newsletter can be viewed on-line by following this link to our Newsletter Archive:

http://whaleyestatelitigation.com/blog/newsletter-archive/ 

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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.

 

Newsletter Contents
I. WEL News
II. Law Review
III. Upcoming Programs
IV. Newsletter Archive

Quick Links

 
 
 
 

 






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

Ameena Sultan
Associate
(416) 355-3258

 

Benjamin D. Arkin
Associate
(416) 355-3264 

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

Marylin Tait 

Legal Assistant

(416) 355-3255

 

Leigh Wallace 

Legal Assistant

(416) 355-3253

 

Francesca Latino

Legal Assistant

(416) 355-3257

 

 

 

 

 

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Whaley Estate Litigation