Whaley Estate Litigation Newsletter Vol.5 No. 3 June 2015
 

   

    

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

 

Whaley Estate Litigation provides litigation, mediation and dispute resolution throughout Ontario to you, and your clients:

  • 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 & Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Agency Services
  • Representation of Persons Under Disability
  • Probate Applications
  • Mediation  
  • Opinions*
  • Approval Motions under Rule 7 

* 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. STEP CANADA - BEST ARTICLE PUBLISHED IN STEP INSIDE

 

Starting with Volume 13 published in the 2014 calendar year, this award will be presented annually to the author of the best writing published by STEP Canada in its national newsletter, STEP Inside.

 

The Editorial Committee of STEP Inside nominates three articles from the immediate past volume of issues and provides them to the Awards Committee each January. Selected articles will be assessed for their original thought and significant relevance and value and benefit to the scope of STEP Canada members. The winning author and his/her article title, as determined by the Awards Committee, will be published in the May issue of STEP Inside and announced at the awards luncheon that takes place at the national conference each June.

 

The first recipient of this distinction is Mark Handelman for his publication: "Whose Mistake?", October 2014, Volume 13, Issue 3

 

The winner is presented with a beautiful fountain pen to inspire future writing for STEP.

  

2. ONTARIO POLICE COLLEGE, ELDER ABUSE CONFERENCE, ALYMER,  ONTARIO

 

Kimberly Whaley and Heather Hogan presented their article on "Elder Abuse" at the Ontario Police College on May 21, 2015, which was well attended by members of the police academy and professionals.

 

Link to paper

 

3. 10th ANNUAL NICE KNOWLEDGE EXCHANGE

 

Kimberly Whaley, Heather Hogan and Mark Handelman presented on the subject "Physician-Assisted Suicide" on May 28, 2015 at Hart House of the University of Toronto.

 

Link to paper

 

4. ILCO 25TH ANNUAL CONFERENCE, THE POWER OF YOU, May 27-30, 2015

 

Kimberly Whaley and Heather Hogan presented on May 29th at the ILCO Conference in Niagara, Ontario on: "Fiduciary Accountings: Guardianship Accounts, Attorney Accounts, Estate Account, Trust Accounts".

 

Link to WEL book: WEL on Fiduciary Accounting  

 

5. CAREGIVING MATTERS, POA PROJECT

 

Kimberly Whaley and Heather Hogan podcast "Powers of Attorney: Who to appoint" was posted in Caregiving Matters on June 1, 2015.  For more information, please check out their website at:

 

www.caregivingmatters.ca

  

6. OBA YEAR END DINNER - THE OBA-HOFFSTEIN BOOK AWARD AND THE AWARD OF EXCELLENCE, JUNE 3, 2015, KING EDWARD HOTEL

 

a) WEL congratulates Ameena

 

Ameena was presented with the Hoffstein Book Prize at the OBA Estates and Trusts End of Term Dinner. Ameena was awarded this honour through academic excellence, lecturing at law schools, participating in Continuing Legal Education and academic writings. Ameena has been on the Estates and Trusts OBA Executive for the past several years and it is through her contribution, experience, skill, commitment and passion, as well as her strength of character that she was honoured by her peers.

 

b) WEL congratulates Liza

 

WEL also congratulates our colleague, Liza Sheard for being awarded the OBA Awards for Excellence in Trusts and Estates.

 

7. 2015 LSUC: FAMILY LAW AND THE ELDERLY CLIENT, JUNE 9, 2015

 

Kimberly Whaley presented her article: "Legal Capacity to Marry, Co-Habit, Separate and Divorce" at the LSUC Family Law and the Elderly Client program on June 9, 2015. The article can be accessed on our website:

 

Link to paper

  

8. ESTATES TRUSTS & PENSIONS JOURNAL

 

Albert Oosterhoff's and Kimberly Whaley's article: "Predatory Marriages - Equitable Remedies" was published in the ETPJ Volume 34, Number 3, May 2015, pages 269-287.

 

9. ESTATES TRUSTS & PENSIONS JOURNAL

 

Albert Oosterhoff's article: "Trust Law Reform: The Uniform Trustee Act" was published in the Estates Trusts & Pensions Journal Volume 34.

 

10 . THE SCARBOROUGH HOSPITAL GERIATRIC DAY PRESENTATION

 

Kimberly Whaley, Heather Hogan and Mark Handelman presented at the Scarborough Hospital Geriatric Education Day on June 12, 2015: "Legal Considerations in Elder Care" and "Carter & Rasouli: When is it Legal to Die in Canada".

 

Link to Legal Considerations in Elder Care paper

 

Link to When is it Legal to Die in Canada paper

 

11. JUNIOR TRUSTS AND ESTATES PRACTITIONERS

 

On May 25, Whaley Estate Litigation was pleased to host a meeting of the Junior Trusts and Estates Practitioners. Presentations were made on the following topics:

 

(1)  Carter v. Canada: assisted suicide and what it means for estate planners, by Lionel Tupman

(2)  So a stranger hands you a POA: the recipient's duty to detect fraud and abuse, by Ben Arkin

(3)  Vexatious litigants and new Rule 2.1 of the Rules of Civil Procedure, by Jacob Kaufman

 

12. JUNIOR ESTATES AND TRUSTS GROUP, JULY 29, 2015

 

Albert Oosterhoff will be giving a talk at a lunch and learn session of the Junior Estates and Trusts Group on July 29, 2015, on the topic: "Indemnification of Estate Trustees".

 

13. ESTATE LIST USERS COMMITTEE UPDATE

 

Michael Valerio is now the Manager of Court Operations (A) - Civil and Family 393 University Ave. Toronto.  Barbara Krever, former MCO has taken another position.

 

Michael Valerio contact details: 

 

Tel: 416-327-5453

email: Michael.Valerio@ontario.ca

 

14. CANADA BAR ASSOCIATION

 

Kim Whaley's article "Ontario's Divisional Court Highlights Indicators of Undue Influence" was published in the Canada Bar Association's  "E-News" in May, 2015. You can read her article on the Elder Law Section's website here: http://www.cba.org/CBA/sections_Elder/main/  

 

15. TORONTO EAST GENERAL HOSPITAL GRAND ROUNDS

 

Mark Handelman will be presenting the following:

 

(a) Consent, Capacity, Questions? Toronto East General Hospital Grand Rounds, with Dr. Nadia Incardona, June 2015;

 

(b)  When is it Legal to Die in Canada? Canadian Psychologists' Association annual meeting, June 2015; and 

 

(c)  Practice Before The Consent and Capacity Board Panelist, Law Society of Upper Canada presentation, June 2015

 

16. GLOBAL EXPERT AWARD

 

Whaley Estate Litigation was chose as the winner in the Boutique category - Trust & Estate Law Firm of the Year in Canada- 2015.

 

17. MARK HANDELMAN/DR. MICHAEL GORDON PUBLICATION

 

"LAST RIGHTS: CUTHBERTSON V. RASOULI -- What The Supreme Court Didn't Say About End of Life Treatment Decisions", With Dr. Michael Gordon, was published in: 35(4) Health Law in Canada, p. 106


 

II. LAW REVIEW: CASES AND OTHER LEGAL REVIEWS

 

(1)  Protecting Canada's Seniors Act: two years later, the results are mixed

 

Two years have passed since Bill C-36, the Protecting Canada's Seniors Act (the Act) came into effect in March of 2013.[1] It expanded the Criminal Code's list of aggravating factors to ensure "...that sentencing for crimes against elderly Canadians reflects the significant impact that crime has on their lives."[2]  Section 718.2(a)(iii) now includes subsection (iii.1) which provides that "evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation" can be considered as aggravating factors during sentencing.[3] 

 

Prior to the Act, section 718 of the Criminal Code already referenced a wide range of aggravating factors that could result in a lengthier sentence if the crime in question is motivated by age or disability, and if evidence exists that the offender abused a position of trust or authority in relation to the victim.[4] We have been waiting to see whether and how the Courts use the Act to punish abusers of older adults and to denounce the crime of elder abuse.

 

We now have the benefit of a reported case citing 718.2(a)(iii), which we will discuss in more detail below. Before we do so, we must confess that our search of the Wesltlaw database, wherein we noted up section 718.2(a)(iii.1), produced 54 cases nationwide. Of those cases, almost all of them (approximately 42) cite section 718.2(a)(iii.1) in the sentencing of perpetrators found guilty of crimes involving sexual assault or exploitation of minors; the aggravating factor being the young age of the victim and the abuse of trust of the victim.

 

Of the remaining 12 cases, many appear to cite s. 718(a)(iii.1) interchangeably with subsections (iii.1) and (iii) whenever there is evidence of an abuse of trust. Indeed, the Ontario Court of Appeal recently considered the appeal of an offender who was found guilty of assaulting his wife.[5] On sentencing, the Court cited s. 718(a)(iii.1) as an aggravating factor. The appellant submitted that the Court erred when it cited s. 718(a)(iii.1) prior to the enactment of Bill C-36. The Court of Appeal dismissed the appeal and held that,

 

"Section 718.2(a)(iii.1) is nothing more than a provision that says that the impact of the crime upon the victim must be taken into account. That has always been a part of the principles of sentencing."[6]

 

In any event, the following decision of R. v. Bernard, below, is an excellent illustration of the use of sentencing provisions to denounce, deter, and punish the crime of elder abuse.

 

R. v. Bernard[7]

 

In this case, Joseph Bernard was convicted of defrauding a 79 year old man of over $10,000.00 by making unauthorized withdrawals of $500.00 a day from a visa card. The older adult had no surviving children and his wife had just been moved into a care home the previous year. He also suffered from early stages of dementia and other forms of "degenerative mental conditions" at the time of the offence.[8] The fraudster came to the victim's house asking to wash his windows and eave troughs. After that the older adult offered to allow the fraudster to live in his house in exchange for assistance around the house and other tasks. The fraudster took on the role of "caregiver" of the older adult. It was in this role that he defrauded his victim. Not only did he steal from the older adult, at the time the fraud was discovered by the older adult's sister-in-law, the house was in a "deplorable state', there was no food in the refrigerator, and the older adult was malnourished and had to be taken to the hospital.

 

The Crown sought a sentence of four and half years in jail. In determining the appropriate sentence, the Court noted:

 

[32] Section 718.2(a)(iii) and (iii.1) provide that a sentencing court consider evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, and evidence that the offence had a significant impact on the victim, considering their age or other personal circumstances, including their health and financial situation, to be aggravating factors.

. . .

 

[47] The present case involves a breach of trust of certainly a very high nature.  Mr. Crouter [the older adult] had confidence in Mr. Bernard [the perpetrator], not only to live in his house and share living space without defrauding him, but to assist him in the necessary tasks which were difficult or impossible for Mr. Crouter to do himself.  When he was "befriended" by Mr. Bernard, Mr. Crouter was living alone after his wife had recently moved into a care home.  His only family support was from the family in Calgary.  His physical and mental health were failing, and it appears from Mr. Bernard's own evidence that Mr. Crouter was not able to properly physically care for himself.  Mr. Bernard purported to be Mr. Crouter's friend and caregiver at a time when Mr. Crouter desperately needed both.  Mr Crouter invited Mr. Bernard into his home in shared quarters and Mr. Bernard assisted Mr. Crouter to drive him to various visits to his wife and run other errands.  He was to make sure that Mr. Bernard was taking his insulin.  Mr. Bernard convinced Ms. Etchison [the sister-in-law] that he was a benevolent caregiver and that he had had prior experience with assisting other elderly persons in need.

 

The Court considered all of the principles of sentencing and concluded that the primary factors involved in this case were the "denunciation" of the conduct and "general deterrence so that others do not participate in similar activities".[9] The Court noted that the perpetrator "preyed upon a vulnerable, isolated, elderly victim and a significant sentence [was] required to reflect society's abhorrence for such conduct".[10] The perpetrator was sentenced to four years in custody.[11]

 

Commentary

 

The Act appears to be applied in practice as an aggravating factor in respect of the abuse of trust, in general, rather than in the sentencing of criminals guilty of crimes relating to elder abuse, specifically. It is not clear whether the database search results are suggestive of a gap in implementation and education in respect of the Act, the categorization of reported decisions by Westlaw, or if it simply confirms what we already know: the crime of elder abuse is underreported, so reported decisions of elder abuse are scarce.

 

The sentencing of criminals who are guilty of abuse of trust is laudable, regardless of which aggravating factor is applied. However, if the current sentencing trend continues, we may not be able to look to section 718.2(a)(iii.1) and its application as source of statistics in respect of the sentencing of perpetrators of elder abuse.

 

The Court in R. v. Bernard very clearly understood the purpose of the Act, and applied section 718.2(a)(iii.1) in a manner consistent with the intentions of Parliament. We will continue to review the use of section 718.2(a)(iii.1) for further examples of the criminal law response to elder abuse.

 

(2) Mark Handelman and Dr. Gordon Michael published in Health Law in Canada by Heather Hogan

 

The May 2015 edition of Health Law in Canada includes the practical and timely article, "Last Rights: Cuthberson v. Rasouli, What the Supreme Court Didn't Say about End-of-Life Treatment Decisions" by Mark Handelman and Dr. Gordon.[12]

 

Do not be fooled by the title: this article is about much more than just the Rasouli decision. Of particular interest is the authors' discussion of what is NOT a treatment within the meaning of Ontario's Health Care and Consent Act. This issue central to the Rasouli decision, of course, but it also determined the outcome in Bentley v. Maplewood.[13] Indeed, the failure of substitute decision makers and/or physicians to appreciate what is, and is not, a "treatment" requiring consent, and therefore a decision that falls within the ambit of attorneys for personal care, may have led to the recent unfortunate events in Rayhons case in Iowa.

 

The authors also review the scope of palliative care, and take great pains to distinguish palliative care from the end-of-life care. They take issue with the assumption that the former is a euphemism for the later, and their umbrage is from academic conceit. As the federal government considers what it should (or should not) do to fill the legislative gaps left by Carter, and as all eyes turn to Quebec's Bill 52 absent any other publicly debated framework, Mr. Handelman and Dr. Gordon have delivered in their article a preliminary road map of sorts to addressing the difficult treatment decisions to come.

 

The authors conclude their article with a number of recommendations for achieving ethical and legal treatment results that will avoid the need for litigation, or at the very least, facilitate better results for the patient as well as the substitute decision maker and the treatment team.

 

Chief Justice Beverley McLachlin observed in Rasouli that the law may not be able to solve every ethical dilemma.[14] Her Honour suggested that a practical solution may be the only solution for physicians if they are comply with the law and as well as their professional and personal ethics.[15] Congratulations to Mark and Michael on a timely and responsive contribution.



1. Protecting Canada's Seniors Act, R.S., c. C-46.

2. The Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada, as quoted in Department of Justice Canada, "Government Introduces Legislation to Better Protect Canada's Seniors," News release, Toronto, 15 March 2012 online:

http://www.justice.gc.ca/eng/news-nouv/nr-cp/2012/doc_32715.html

3. Protection of Older Adults Act S.C. 2012, c. 29; Department of Justice, Backgrounder: Protecting Canada's Seniors Act, online: http://www.justice.gc.ca/eng/news-nouv/nr-cp/2013/doc_32826.html

4. Criminal Code, R.S.C., 1985, c. C-46, sections 718.2 (a) (i) and (iii).

5. R. v. Ohri, 2015 ONSC 356 (CanLII).

6. Ibid., para 21.

7. 2015 BCPC 0107.

8. 2015 BCPC 0107 at para. 7.

9. Ibid. at para. 64.

10. 2015 BCPC 107 at para. 65.

11. 2015 BCPC 107 at para. 66.

12. Mark Handelman and Michael Gordon, "Last Rights: Cuthberson v. Rasouli, What the Supreme Court Didn't Say about End-of-Life Treatment Decisions" (2015) 35:4 Health Law in Canada at p 106.

13. Bentley v. Maplewood Seniors Care Society, 2015 BCCA 91 (CanLII). See para 8 - The chambers judge found that the provision of oral nutrition and hydration by prompting with a glass or spoon is a form of personal care, not health care within the meaning of the HCCCFA Act. This finding was not an issue on appeal.

14. Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341 at para 75.

15. Ibid.

III. UPCOMING PROGRAMS

 

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

September 10, 2015

Co-Chairs: Kimberly Whaley and Tim Grieve

https://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE15-0090201

 

2. Frontenac Law Association 1000 Islands Legal Conference

Gananoque, September  18-19, 2015

Contested Passings of Fiduciary Accounts and Predatory Marriages

Speaker:  Kimberly Whaley

http://www.cfla.on.ca/cfla/conferencePayment.php

 

3. OBA, YLD, Wills and Estate Planning: A Primer

September 29, 2015

The Initial Client Meeting: Practice Issues - Before the Meeting

Speakers: Kimberly Whaley and Lionel Tupman

 

4. LSUC Estates Summit

October 7-8, 2015

Capacity

Speakers: Kimberly Whaley and John Poyser

 

5. CBA Wills, Estate and Trust Fundamentals for the Estate Practitioner

October  15-17, 2015

Trends in the Practice of Estates and Trusts: Building on Estates Practice  

Speaker, Kimberly Whaley

 

6. LSUC, The Intersection of Estates Law and Bankruptcy Law: Administration of the Insolvent Estate

October 30, 2015

Speaker: Kimberly Whaley

Chairs: Frank Bennett and Ben Arkin

 

7. Osgoode Professional Development, Key Issues -Best Practices - Practical Approaches

Advising the Elderly Client,  November 4-5, 2015

Claims Arising out of Later Life Partnerships

Speaker: Kimberly Whaley

http://osgoodepd.ca/upcoming_programs/advising-the-elderly-client/

 

8. CCEL 2015 Elder Law Conference, Vancouver, BC

Capacity and Predatory Marriages

November 12-15, 2015

Speaker: Kimberly Whaley and Heather Hogan

http://www.bcli.org/ccel/upcoming-events 

 

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

  

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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

Lionel J. Tupman
Associate Lawyer
(416) 355-3258

Joanne Hwang
Associate Lawyer
(416) 355-3270
 
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

 

Rita McHorgh
Legal Assistant
(416) 355-3261

Kimberlee Pearce
Legal Assistant
(416) 355-3257

Celine Byer

Office Coordinator

(416) 355-3253


 

 

 

 

 

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