Whaley Estate Litigation Newsletter Vol.4 No. 8 November 2014
 

   

    

Thank you for your continued feedback, comments, enquiries and contributions at: newsletter@whaleyestatelitigation.com

 

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

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

* Albert Oosterhoff, Professor Emeritus Western University, Counsel at WHALEY ESTATE LITIGATION, consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. Albert provides legal opinion and as such litigation support services to lawyers, law firms and their clients.

 

Please Enjoy, 

 

Kimberly A. Whaley
Whaley Estate Litigation

 

I. WEL NEWS   

1. WEL HAS MOVED OFFICES

 

Kindly amend your records:

 

45 St. Clair Avenue West, Ste, 600

Toronto, Ontario  M4V 1K9

 

Please note our email addresses have also changed to whaleylawyers:

 

Kimberly Whaley

Principal

kim@whaleylawyers.com

Mark HandelmanFirm Counselmark@whaleylawyers.com
Prof. Albert OosterhoffFirm Counselalbert@whaleylawyers.com

Ameena Sultan

Associate Lawyer

ameena@whaleylawyers.com

Benjamin Arkin

Associate Lawyer

ben@whaleylawyers.com

Heather Hogan

Associate Lawyer

heather@whaleylawyers.com

Bibi Minoo

Estate Clerk

bibi@whaleylawyers.com

Birute LyonsLaw Clerkbirute@whaleylawyers.com

Marylin Tait

Legal Assistant

marylin@whaleylawyers.com

Francesca Latino

Legal Assistant

franca@whaleylawyers.com

Elizabeth Donovan

Legal Assistant

elizabeth@whaleylawyers.com

Deborah StadeOffice Manager
deb@whaleylawyers.com
Celine ByerOffice Coordinatorceline@whaleylawyers.com

 

 

2. WEL ON FIDUCIARY ACCOUNTING AND BIRUTE LYONS

 

WEL published a book, in-house, comprised of a selection of collaborative firm materials on, "WEL ON FIDUCIARY ACCOUNTING". We compiled this resource as a tool for use by our clients and for our colleagues and friends. The book has been uploaded as a PDF. Please feel free to use it.


 


 

Click to download

 

If you wish to receive a hard copy while we have some left please send Kim an email with your request.

 

Birute Lyons, Senior Estates Law Clerk with over 30 years of experience in reviewing Estate and Fiduciary accounts has joined us full time as our resident in-house resource in support of our fiduciary accounting practice both in contested and uncontested account proceedings.

 

We are finding almost every piece of litigation has an accounting element to it these days, whether formal in a court application, or informal and as such we have found a need to offer competent assistance in both identifying and in remedying accounting issues. Fiduciary transparency and accountability is an area of scrutiny and growth. It is important that a strategy is adopted to properly address these issues.

 

3. "WHAT'S NEXT? NAVIGATING LATER LIFE TRANSITIONS" BOOK REPRINTED

 

In early 2013 Kimberly contributed the chapter "Conundrums in Cognition: Planning for the Future" to the book "What's Next? Navigating Later Life Transitions".  This book has been re-printed. To obtain a copy contact Kim by email.

 

 

 

4. LAW TIMES, OCTOBER 20, 2014

 

Ameena Sultan was interviewed by Judy Van Rhijn for the October 20 edition of the Law Times on "New Ways to Lose an Inheritance Emerging: Recent Decisions, Legislation Altering Landscape for Estates Matters."

 

Ameena spoke about the recent Superior Court decision in Leibel v. Leibel in which the Honourable Madam Justice Greer imposed the two-year limitation period found in the Limitations Act, 2002 on a will challenge.

 

http://digital.lawtimesnews.com/i/400012/11

 

5. STEP WINNIPEG, OCTOBER 23, 2014

 

Kimberly Whaley attended the STEP Winnipeg as a speaker and presenter on October 23, 2014, presenting her paper on "Predatory Marriages". Kim extends a warm thanks to her fellow colleagues in Winnipeg for their kind and generous reception and hospitality. 


 
Download paper

 

6. OBA: CAPACITY TO INSTRUCT COUNSEL, OCTOBER 28, 2014

 

On October 28, Ameena Sultan chaired a program organized by the Ontario Bar Association, Estates and Trusts Section, on the topic of "Capacity to Instruct Counsel".  

 

Ed Montigny, of ARCH Disability Law Centre, and Mercedes Perez, of Swadron Associates provided a lively presentation and interactive discussion on this tricky topic.  Also presenting was Grace Cheng, of the Office of the Children's Lawyer on the recent Ontario Court of Appeal decision in Cowderoy v. Sorkos.

 

http://www.cbapd.org/details_en.aspx?id=ON_14TRU1028T 

 

7. LAW  COMMISSION OF ONTARIO CONSULTATION FORUM ON LEGAL CAPACITY, DECISION-MAKING AND GUARDIANSHIP

 

Kimberly Whaley attended a discussion forum and focus group on guardianship and legal capacity on October 30, 2014. The session was a working session amongst professionals in different sectors to address potential reform.


 
Link to paper: http://www.lco-cdo.org/en/capacity-guardianship

 

8. LSUC, 17th ANNUAL ESTATES AND TRUSTS SUMMIT

 

Kimberly Whaley and Ameena Sultan presented their article, "Intestacies, Partial Intestacies and Remedies" at the LSUC Summit, Day 1, on November 3, 2014.

 

Download paper 

 

9. LSUC, 17th ANNUAL ESTATES AND TRUSTS SUMMIT

 

Albert Oosterhoff presented his article, "Trust Law Reform: The Uniform Trustee Act - Some Aspects of Indemnification of Trustees", at the LSUC Summit, Day 1, on November 3, 2014.

 

Link to his paper:  http://ecom.lsuc.on.ca/mat/?id=14-0110100

 

10. OBA, CIVIL LITIGATION SECTION, BENJAMIN ARKIN

 

Benjamin Arkin presented on third party disclosure orders and powers of attorney at the OBA Civil Litigation section program, "Banking Litigation: What Every Civil Litigator and In-house Counsel Needs to Know" on November 5, 2014. 

 

Download paper

 

11. LAWYERS WEEKLY, NOVEMBER 17, 2014, ALBERT OOSTERHOFF

 

Albert Oosterhoff was interviewed by Michael Benedict for an article to be published in Lawyers Weekly on November 17th in connection with "Make a Will Month". The article will focus on the care lawyers must exercise and the obligations they have when taking instructions for a will for an elderly person, to ensure that the testator has capacity (including knowledge of assets and family members); knows and approves of the contents of the will; and that there are no suspicious circumstances or undue influence. Also covered in the article is the obligation of lawyers to take complete notes of the interview with the client, and the potential liability of lawyers who fail to have the will executed in a timely manner or fail to ensure that it is executed properly.

 

Article will be blogged when available.

 

12. STEP GLOBAL CONGRESS, MIAMI

 

Kimberly Whaley attended STEP Global Congress in Miami on November 6-7 at the Mandarin Oriental Hotel.  Kim attended board meetings in her capacity as a director and as Chair of STEP Toronto. Kim also attended conference sessions on Mental Capacity, Contentious Estate Proceedings, and Private International Law.  


 
For further information, please access the STEP website at:

 

13. BAYCREST FOUNDATION PROFESSIONAL ADVISORY GROUP - BREAKFAST SEMINAR

 

Heather Hogan and her co-panelists, Constable Patricia Fleischmann of the Toronto Police Service and Jonathan Shime, Partner at Cooper, Sandler, Shime and Bergmann, presented a paper on Identifying and Remedying the Financial Abuse of Older Adults on November 13, 2014.

 

Download article

 

 

II. LAW REVIEW: CASES AND OTHER LEGAL REVIEWS

 

Ontario Court of Appeal Reviews Civil Contempt in Estate Litigation and Confirms Fines Not Payable to the Estate 

 

Susin v. Susin - http://canlii.ca/t/gf3fq

 

In October, the Ontario Court of Appeal released a decision that examines the test for civil contempt of court in the context of an estate dispute and confirmed that the proper recipient of any fine imposed is the Provincial Treasurer and not the estate itself.[1]

 

The Dispute

 

This dispute is between two factions of nine siblings and has been ongoing since 1998. The siblings' father died in 1983. His Will allowed his wife to remain in the family home [the Estate's main asset] in Niagara Falls until she died, and then the house was to be sold and the proceeds to be divided among the children. The mother died in 1998 and lengthy and voluminous litigation commenced, including litigation over one son's (John Jr.'s) equitable interest in the home, two Federal Court hearings on mouldy papers John Jr. allegedly left in the house, a motion for relief on an improvident sale, a contempt motion against the lawyer for the Estate (which was dismissed), and appeals of all of these decisions. 
 

John Jr. was declared a vexatious litigant in 2008.

 

John Jr. and his brother Dorino (on behalf of their group of siblings) had also brought multiple motions to have the passing of account application venue moved from Welland. However, seven Superior Court Justices (in motions brought in Toronto, Newmarket and Brampton) ruled that Welland was the correct place for a passing of accounts hearing.[2]

 

In 2013, Dorino (on behalf of John Jr. and their faction) brought yet another motion to have the passing of accounts application moved. The responding set of siblings (including the Trustees) brought a cross motion to commit Dorino for contempt of court, an order declaring him a vexatious litigant, and an order that he could not start any proceedings against the Trustees without leave of the Court.

 

The Motion 

 

The motion judge dismissed Dorino's motion seeking to move the venue of the passing of accounts application.

 

The motion judge also dismissed the cross-motion seeking to make Dorino a vexatious litigant. However, Dorino was found to be in contempt of court:

 

The trustees submit that . . .[Dorino is] in contempt of court by bringing the present motion in the context of this litigation. Three[3] times the court has pronounced that the matter must proceed in Welland. On the last occasion a clear warning was given that misbehaving beneficiaries could face imprisonment if they continue their campaign or abusive motions. In the face of that warning, the present motion, a fourth request to transfer the matter out of Welland, was brought. In my view in the particular circumstances of this case this serious and repeated abuse of process rises to the level of contempt. It subverts the administration of justice by making ineffective the rules of procedure and basic concepts of fairness such as res judicata.

 

I have no doubt on the criminal standard of proof that Dorino Susin brought the present motion intending to subvert the administration of justice to show disrespect for the court and to harass the responding parties. Dorino Susin's motives are purely vindictive. He has no hope of recovering from the estate. He owes the estate much more than his share of what remains. I find him guilty of contempt. [4]

  

As a penalty for contempt, the motion judge ordered that Dorino:

 

a) be committed to prison for three days;

b) pay a fine to the Estate in the amount of $10,000.00;

 

c) be prohibited from taking any further steps in this proceeding or in any proceedings  to which the Trustees are parties, except for an appeal from the present order; and

 

d) pay costs of the motions to the Estate in the amount of $10,141.78 on a full indemnity basis.

 

Dorino served the three days in jail and then appealed the $10,000 fine payable to the Estate and appealed the judge's decision to dismiss his motion to move the passing of accounts hearing.

 

The Court of Appeal

 

Passing of Accounts Venue

 

Justice Blair, on behalf of the Court of Appeal, found no basis to interfere with the trial judge's decision to dismiss the motion to change the venue for the passing of accounts application. The motion judge had two reasonable bases for doing so:  First, the trustees could not pass the final stage because there were still significant debts owing to the estate (including substantial outstanding costs awards against Dorino and John Jr.) and the estate continued to incur legal costs as the John Jr./Dorino team kept bringing further motions before the court. Second, the issue of venue, including the venue of the passing of accounts had already been litigated repeatedly, and repeatedly Superior Court judges had held that venue for dealing with matters relating to the estate was Welland. [5]

 

Contempt

 

The Court of Appeal also found no reason to interfere with the motion judge's finding of contempt. The test for civil contempt, where breach of a court order is in issue, is three-fold:

 

a) the order that is said to have been breached must be clear and unequivocal;

 

b) the party who is alleged to have breached the order must be found to have done so deliberately and wilfully; and

 

c) the evidence must prove contempt beyond a reasonable doubt. [6]

 

Dorino argued that the bringing of the present motion (to move the venue of the passing of accounts hearing) did not constitute disobedience of the previous orders and therefore that the motion judge had no authority to make a contempt order. Rule 60.11 of the Rules of Civil Procedure states that: "A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made."[7] Dorino argued that the previous orders did not require him to do an act or abstain from doing an act and therefore a contempt order could not be made to enforce the orders under the Rules.

 

Justice Blair stated that:

 

While this may technically be so at one level, I see no practical difference between failing to obey the orders and failing to recognize and accept the validly-made previous orders, in these circumstances. They are tantamount to the same thing. Substantively they have the same destructive effect on the integrity of the administration of justice.  In any event, breach of a prior court order is not the only type of conduct that will justify a finding of contempt.

 

Referring to the classic definition of contempt at common law in The Queen v. Gray [8]  which includes "any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court", Justice Blair concluded that bringing the new motion constituted contempt of court:

 

It constituted an act done that was intended to, or was likely to, interfere with or obstruct the fair administration of justice. . .  Here, even if Dorino's conduct did not amount to breach of a court order, it was open to the motion judge - as he recognized - to resort to the common law power to commit for contempt in the circumstances. 

 

Looked at in isolation, Dorino's motion for the passing of accounts in Brampton could be taken as simply an abuse of process. But in the circumstances here, it is more than that. The facts outlined by the motion judge in the passages quoted above raise Dorino's motion to another level, in my view. As the motion judge found, Dorino brought the motion intending to subvert the administration of justice, intending to show disrespect for the court, and intending to harass the opposing beneficiaries, all for vindictive reasons and in the context of having been previously warned of the risk of imprisonment for contempt.[9]

 

Error in Ordering Fine Payable to Estate

 

While the Court of Appeal agreed that Dorino was in contempt, it found that the trial judge erred in finding that the fine should be payable to the Estate.

 

Citing SNC-Lavalin Profac Inc. v. Sankar,[10] the Court found that a fine imposed for civil contempt of court ought not be payable to a party in the action but, rather, to the Provincial Treasurer:

 

Contempt of court for breach of a court order is an offence against the authority of the court and the administration of justice. . . 'It does not have, and must not appear to have, the function of a civil action in tort or for breach of contract". . . A fine for contempt of court, therefore, should not go to the plaintiff in the lawsuit. [11]

 

Justice Blair "did not see any difference" between 'a plaintiff' and the Estate: "both are parties to the proceedings".[12] Ultimately, the Court decided to set aside the $10,000 fine in its entirety. The Estate Trustees had asked that if the fine was not going to be paid to the Estate, then no fine should be imposed, as a payment to the Provincial Treasurer would have the effect of further diminishing Dorino's assets and making it more unlikely that he would pay any outstanding costs awards owing to the Estate.

 

Conclusion 

 

Civil contempt orders are difficult to obtain, yet are now more frequently issuing in Estates and in particular in fiduciary accounting proceedings. Even when they are ordered it is hard to determine if they fulfill their goal of deterring contemptuous behaviour.

 

In this matter, any financial penalty was virtually useless due to the extensive debt the party owed the Estate.  However, this case provides a helpful overview of the test to meet both under the Rules and at common law for civil contempt of court.


[2] Susin at para.9

[3] Justice Blair observed that: "The motion judge referred to three, but by my count there were seven.  Darla Wilson J., Hoy J. (as she then was), Di Tomaso J., Snowie J., McCarthy J., Herold J., and Price J. have all made orders directly or indirectly confirming Welland as the venue for the hearing of the estate matters." See Susin at footnote 3.

[4] At para.20.

[5] At para.16.

[6] See Prescott-Russell Services for Children and Adults v. G.N. (2006), 82 O.R. (3d) 686 (C.A.) at para. 27; Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85 at para.21.

[7] Rule 60.11 of the Rules of Civil Procedure.

[8] [1900] 2 QB 36 at 40,quoted in R. v. Cohn (1984), 1984 CanLII 43 (ON CA), 48 O.R. (2d) 65 (C.A.), at p. 78, leave to appeal to S.C.C. refused, [1985] 1 S.C.R. vii.

[9] Susin at para. 26.

[10] 2009 ONCA 97.

[11] Susin at para. 39.

[12] Susin at para. 40.

III. UPCOMING PROGRAMS

 

1. OBA ADR Dinner Program  - Ethical Problems That Emerge in Mediations

November  20, 2014

Speaker: Kimberly Whaley

http://www.cbapd.org/details_en.aspx?id=ON_14ADR1120T
 

2. STEP Canada - December Seasonal Event

Seasonal Reception, First Canadian Place, Music by Oui B. Jamon, sponsored by Sick Kids Foundation, Guest Speaker, Malcolm Berry

RSVP event

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

 

3. STEP Canada - Guardianships: Dealing with Minors and Adults Under Disability

January 14, 2015

Co-chairs: Kimberly Whaley, Whaley Estate Litigation and Craig Vander Zee, Torkin Manes LLP

Speakers: Kimberly Whaley, Kenneth  Goodman, The Public Guardian and Trustee;Steve Adams, Comptroller and Accountant of the Supreme Court of Justice; and Linda Waxman, OCL

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

 

4. OBA Institute:  No Bones About It: Critical Issues and Essential Updates in Trusts and Estates Law

February 4, 2015

Co-Chairs:  Jane  E. Martin, Ameena Sultan

http://oba.org/Institute/Program-Listing/Wednesday/Trusts-and-Estates-Law

 

5. STEP Canada - Financial Abuse: Detection and Intervention

February 11, 2015

Chair: Kimberly Whaley 

Speakers:   Doug Melville, Ombudsman and CEO for Banking Services and Investments (OBSI); Fiona Crean, Ombudsman for the City of Toronto; and  Laura Tamblyn Watts LL.B., Elder Concepts

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

 

6. STEP Ottawa - Decisional Capacity

February 18, 2015

Speakers: Kimberly Whaley, Ameena Sultan  and Dr. Ken Shulman

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

 

7. STEP Canada - The Transfer of Wealth including the Family Cottage    

April 15, 2015  Co-Chairs: Rachel Blumenfeld and Elaine Blades

Speakers: Gwen Benjamin, Wilson Vukelich LLP and Justin de Vries, de Vries Litigation

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

 

8. Estate Planning and Litigation Forum, Cambridge, Langdon Hall

April 26 - 28, 2015

Speaker: Kimberly Whaley

 

9. LSUC 6-Minute Estate Lawyer, May 6, 2015

Speakers: Kimberly Whaley, Estate Court Update

http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE15-0050201 


1
0. STEP Canada- Elder Care: A Practical Approach, May 13, 2015

Co-Chairs: Chris Clarke and Greg McNally

Speakers: Mike Love, Account Executive , Legacy Private Trust; Dr. R. Rupert,     Rupert Case Management; Audrey  Miller, Managing Director, Elder Caring Inc.,  and  Audrey Miller & Associates; and Trevor Parry M.A., LL.B, LL.M (Tax), TEP, Executive VP and National Sales Director at GBL Actuaries and Consultants

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

 

11. ILCO Conference, May 29, 2015

Speaker, Kimberly Whaley and Heather Hogan

http://www.ilco.on.ca/events-conferences/2015-conference 

 

12. LSUC Program: Capacity To Marry, Divorce, Separate, Divorce, And Live Common Law, June 9, 2015

Speaker: Kimberly Whaley

Chair: Jan Goddard and Nimale Gamage

 

13. The Scarborough Hospital's Annual Geriatric Education Day, Scarborough General Hospital: Planning for Future Disability

June 12, 2015

Speaker: Kimberly Whaley

 

14. STEP CANADA National Conference

June 18-19, 2015

Speaker: Kimberly Whaley

 

15. LSUC, Practice Gems, The Administration of Estates 2015

September 2015

Chair: Kimberly Whaley 

 

IV. In Case You Missed It - Last Month's Highlights from Our Blog 

V. 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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We continually add articles and posts to our blog and will post update notices via Twitter and on LinkedIn.  If you would like to follow our blog via our RSS feeds here is the link: 

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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. Recent Blog Posts
V. Newsletter Archive

Quick Links

 
 
 

 






Contact Info

45 St. Clair Ave West
Suite 600
Toronto, ON, M4V 1K9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
CS, TEP, LLM
Principal
(416) 355-3250
 
Mark Handelman
Firm Counsel
(416) 355-3254

Albert H. Oosterhoff
Firm Counsel
(416) 355-3266
 
Ameena Sultan
Associate Lawyer
(416) 355-3258

 

Benjamin D. Arkin
Associate Lawyer
(416) 355-3264 

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

Birute Lyons
Law Clerk
(416) 355-3259

Marylin Tait 

Legal Assistant

(416) 355-3255

 

Francesca Latino

Legal Assistant

(416) 355-3257

Celine Byer

Office Coordinator

(416) 355-3253


 

 

 

 

 

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