WEL Newsletter - Volume 5, Number 11 - February 2016


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

* Albert Oosterhoff, Professor Emeritus Western University, Counsel to WEL consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. 
Please Enjoy,

Kimberly A. Whaley


WEL is pleased to welcome Kerri Crawford who has joined as an Associate Lawyer Litigator.
Kimberly Whaley and Suzanne Michaud of RBC presented at a webinar on: "Show me the Money! Navigating Unique Issues with Seniors and their Financial Institutions".

Mark Handelman presented at Baycrest on "Geriatric Medicine Rounds - When is it Legal to Die in Canada".

Kimberly Whaley and Lionel Tupman presented on Elder Financial Abuse and Exploitation at the Toronto Police College Seminar. This program will be repeated on May 12th and October 20th, 2016. 

Laura Cardiff's article "Senior Abuse: What Can Ontario Learn From Other Provinces" was published on January 22, 2016, in The Canadian Bar Association's Elder Law Enews. 


Benjamin Arkin's article "Off The Record' Conversations: Yes Or No?" was published January 14, 2016.

Link to article
Kimberly Whaley and Michael Okumura, Personal Trainer and owner of Fusion Health Studios, article "Finding Time for Fitness" was published January 26, 2016. 


Benjamin Arkin presented his article: "Ghosts in the Courtroom: Three Things Civil Litigators Need to Know About the Dead" at the OBA Institute 2016, Civil Litigation Section, Litigation Minefields: Tips from Tax, Estates, Criminal, and Other Unanticipated Issues.

Link to article


Kimberly Whaley and Professor Albert Oosterhoff presented at the Osgoode Professional Development, Elder Law Webinar on: "New Spouse / Old Money: Claims Arising Out of Later in Life Partnerships".



Announcement summary from LCO:

"On January 11, 2016, The Law Commission of Ontario (LCO) today released its Interim Report on Legal Capacity, Decision-making and Guardianship for public feedback. The Interim Report includes draft recommendations designed to respond to concerns about Ontario's laws addressing situations where decisions are needed but decision-making abilities are at issue. In particular, there are concerns about misuse or abuse of powers of attorney, inappropriate or excessive intervention in the lives of persons with disabilities that may affect their decision-making abilities, the means available to individuals and families to enforce rights or resolve disputes in this area, and the effective implementation of these laws. 
The LCO encourages feedback from members of the public, including older adults and persons with disabilities, family members, service providers, policy-makers, lawyers and advocates, UNTIL FRIDAY, MARCH 4, 2016, as part of its public consultation process.  The LCO anticipates releasing a Final Report in 2017.  
The LCO's analysis and draft recommendations in this project build on principles developed in its previous work on law, aging and disability, and seek to take into account the diversity of needs, circumstances and perspectives of those affected by this area of the law.  "Laws in this area have a profound impact on the dignity, autonomy, security and inclusion of older adults and persons with disabilities," said Bruce Elman, chair of the LCO's Board of Governors. "Reforms to this area of the law have the potential to make a significant difference in the lives of many Ontarians."
Launched in September 2007, the LCO is funded by the Law Foundation of Ontario, the Ministry of the Attorney General, Osgoode Hall Law School and the Law Society of Upper Canada, and is also supported by Ontario's law schools. It receives funding and in-kind assistance from York University. Housed in the Ignat Kaneff Building, home of Osgoode Hall Law School, York University, the LCO operates independently of government to recommend law reforms to enhance access to justice".


The article "Physician-Assisted Death in Canada: As the Law Changes" written by Mark Handelman, Heather Hogan, and Madeeha Hashmi, was published in Health Law in Canada, Volume 36, Number 2, November 2015 Issue.
Reproduced with permission of the publisher LexisNexis Canada Inc. from Health Law in Canada, Vol. 36, No. 2, November 2015


Estates list staff reported to the Estates List Users Committee earlier in January that there have been some recent staffing changes in the office. Joe DiPietro has moved to a new role on the civil list. He has been replaced by Bruna, who can be reached at the same phone number (416-327-5043) and Toronto.estates@ontario.ca email address.  Tara Stead has been replaced by Joe Doria as Supervisor, Court Operations.
The court continues to try to minimize wait times for hearing dates. Staff reported that 9:30 appointments are currently booking in mid-February. One hour motions are booking in mid-April, and half day motions are booking in mid-May.
WEL has just recently published our book on Guardianships.

For details, please contact Kim Whaley at: kim@whaleylawyers.com


by Mark Handelman

On January 15, 2016, the Supreme court released its decision on the Federal government request to extend the suspension of its declaration that physician-assisted death was unconstitutional.  The suspension was to expire on Feb. 6th 2016, the first anniversary of the Court's release of the groundbreaking judgment in Carter v. Canada,(Attorney General), 2016 SCC 4 (CanLII), http://canlii.ca/t/gmxkq, but the Federal Government asked for more time to craft legislation.  The 4 month extension was a unanimous decision of the Court.  That was the easiest part because there were 2 other issues.

The second issue was whether the extension of the suspension should apply to Quebec where provincial law allowing physician-assisted death has been legal since Dec. 10, 2015.  The Curt granted Quebec's request without offering an opinion on the legality of the provincial statute.  In other words, physician-assisted death is still against the Criminal Code of Canada across the country, except in Quebec.

And, that takes us to the next point.  Many of the parties who made submissions to the Court argued that it was unfair to make people enduring intolerable suffering to wait an extra 4 months before being assisted to die. In a split decision, the Court granted an unusual provision: Physician-assisted death is now legal across Canada, but outside Quebec a Superior Court Judge must approve the request.

The goal was to give the Federal and provincial governments more time to craft appropriate legislation while not forcing those in dire straits to wait to end their lives until the legislation is in place.  Unfortunately, it will take a court application to achieve the result.  While no one knows what that application will or should look like, we think it will be similar to the guardianship applications our firm handles almost routinely. 


by Kimberly Whaley

"The costs issue requires consideration of what the element of distrust the parties have harbored for each other has cost them, and who should pay the price for that distrust." - Justice Emery
The case of Greaves v Nigro[1] has the hallmarks of a 'typical' power of attorney and passing of accounts dispute: parents who changed the appointed attorneys under their power of attorneys from their daughters to their sons, allegations of mismanagement, requests for more documents, refusal to provide information, mistrust, and a complete breakdown in the family relationships.
 After an application for the passing of accounts in this matter, Justice Emery was asked to determine who should bear the costs of this legal proceeding: The attorney? The applicants'? The Estate of the grantor? Or, a little bit of all of the above?
Background Facts
In 2005, the parents of the parties executed power of attorney for property and personal care documents appointing their two daughters as joint attorneys. Later, in 2012, the parents executed new power of attorney for property and personal care documents appointing their two sons as attorneys.
After the mother's death, one brother commenced managing his elderly father's financial affairs at the father's request pursuant to the POA for Property, although the father was still capable. The father also told his son not to share his financial information with his sisters.
The sisters felt left out of their father's care and attempted to regain some involvement in his life by starting an application requesting their brother to pass the accounts. The father died shortly after the application had started.
Through various adjournments, cross-examinations, and continual requests for more documents by the applicants, the application wound its way to a hearing on December 19, 2014. At the hearing the brother consented to an order that he produce a formal accounting from 2012 to 2013, the time in which he was acting as attorney for property for his father. An earlier court order had already required the brother to produce banking records from 2012 to 2014.
Upon a full review of the formal accounting, the applicant sisters determined that the accounting did not reveal any further information than what the brother had already produced and they were ultimately satisfied that the brother had not mismanaged the financial affairs of their father.
Costs on a Passing of Accounts Application
The hearing on the costs of the passing of accounts application was held almost a year later in October 2015 and both sides' levelled allegations of misbehaviour against the other as a reason why the opposite party should pay costs.
The applicant sisters argued that their brother behaved in a secretive, high-handed, mean-spirited and antagonistic manner, which lead them to bring the application. The brother argued that it was the sisters who created the atmosphere of mistrust by making unfounded and unsubstantiated allegations against him.
Justice Emery began the court's cost analysis with a thorough review of the significant costs decisions in estates litigation, including McDougald Estate v Gooderham (2005), 2555 D.L.R.  (4th) 435; Geffen v Goodman Estate [191] 2 SCR 353; Kaptyn v Kaptyn 2011 ONSC 542; and Sawdon Estate v Sawdon 2014 ONCA 101.
In particular, Justice Emery noted that historically, under the traditional approach, the courts would order the estate to bear the costs of all parties. This was replaced by the modern practice of following the costs rules that apply in any other civil litigation matter (the "loser pays" principal) unless one or more of the relevant public policy considerations exist (such as when there are reasonable grounds to question the execution of the will or testamentary capacity; or any ambiguities in the will that give rise to the litigation were caused by the testator) and costs may be paid out of the estate.
However, the law of costs continues to evolve, evidenced by the decision of the Ontario Court of Appeal in Sawdon Estate, where a blended costs award was made. The estate trustee in that case recovered partial indemnity costs from the losing party, but also received the balance of his costs from the estate.
Applying the law of costs in this passing of accounts case, Justice Emery observed that:
The challenge under the blended approach to costs introduced by Sawdon is the discernment of that point where the pursuit of legitimate interests served by seeking a passing of accounts crosses the line into the realm of personal conflict between the parties, and where the applicant's bona fide intentions are subsumed by a subjective quest for information that is never satisfied. It is the point at which a good faith enquiry turns into a grand inquisition.[2][emphasis added]
Ultimately, Justice Emery concluded that the sisters were entitled to require their brother to pass his accounts and that they had legitimate reasons to bring an application for the court to grant leave to pass accounts. Therefore, the Court granted the applicants their substantial indemnity costs from their father's estate from the date their application materials were drafted up until the date of the hearing of the application.
Justice Emery also awarded the brother his substantial indemnity costs up to and including the appearance at the hearing from his father's estate. He would have awarded full indemnity costs to the brother, however, Justice Emery was of the view that the brother could have reasoned with the father to allow him to share financial information with his sisters which could have eliminated much of the distrust that fuelled the litigation.
However, it doesn't stop there. Justice Emery also concluded that the hearing date "was a dividing line between making an order that costs be paid out of the estate and ordering costs on other principles applicable to civil matters".[3] The applicants already had the majority of the required disclosure months before the passing of accounts hearing, but continued to request further disclosure. This turned into an "insatiable quest for information".[4]
In considering the Rule 57 factors on a costs award, Justice Emery noted that the sisters proceeded at their own risk on and after the hearing date when they insisted on formal accounts even though they had already received much of the information the were seeking. Considering the brother to be the "more successful party"[5] Justice Emery awarded the brother his partial indemnity costs after the hearing date to be paid by the sisters, but also his remaining costs to be paid by the estate, so he was fully indemnified.
This case shows that there can be a number of variations on awarding costs on a passing of accounts application and who the ultimate payor will be. Evolving law on costs has opened the door to more creative costs solutions such as the blended costs approach used here, rather than simply the two options of out of the estate or by the parties personally.

[1] 2016 ONSC 44 [Greaves].
[2] Greaves at para. 86.
[3] Greaves at para. 95.
[4] Greaves at para. 96.
[5] Greaves at para. 99.

by Kimberly Whaley

When our older loved ones' deteriorating mental and physical health requires accommodation in a long term care facility, we want (and expect) them to be well cared for, comfortable, and respected in the final years of their lives. Sometimes these expectations are not met and unfortunately, there have been instances of elder abuse in long-term care homes and other similar facilities. In a recent case from Alberta, R. v. Dumo 2015 ABPC 219, http://canlii.ca/t/glqwl, three employees of a long-term care facility were charged and convicted of assaulting an elderly resident after their acts were caught on a hidden camera.  Justice Bascom reviewed recent sentencing decisions in similar elder abuse cases and provided an overview of the considerations to be taken in sentencing in this area.
The Accused and their Victim
In R v. Dumo, the three employees of the long term care facility were fired from their jobs and charged with assault (under s.266 of the Criminal Code) http://canlii.ca/t/7vf2. The victim was a 92 year old man in palliative care suffering from dementia and prostate cancer. His family installed a hidden camera in his room after they noticed a change in his personality and he advised them that the staff was hurting him.
An agreed statement of facts described the reprehensible behaviour caught on camera, including the employees slapping him, flicking him with water, threatening to dump water and urine from his catheter bag on his head, using excessive force, covering his face with a sheet, and giving him the middle finger. He died shortly after.
In the victim impact statement the family stated: "At the very least, the assault resulted in [him] living the last months of his life feeling afraid, mostly alone, helpless, and angry instead of comfortable, safe, loved and at peace."
What is an Appropriate Sentence?
In discussing the sentencing considerations, Justice Bascom canvassed sentences in similar cases and noted that "there does not appear to be a great deal of precedent in this particular area". The cases reviewed included the following facts and sentences:
  • A doctor who struck a 93 year old patient received a suspended sentence and a term of probation.[1]
  • An employee who committed multiple acts of assault on patients at a long-term care facility over five years was sentenced to 8 months plus 2 years of probation.[2] 
  • A personal support worker who assaulted a 90 year old Alzheimer's patient received a 90 day conditional sentence and one year probation.[3]
  • A man convicted of assaulting a severely mentally challenged woman received a suspended sentence plus probation for 18 months.[4]
  • A man who put hand sanitizer in the eyes of a severely handicapped woman, poured lemon juice on her face and peppercorns in her mouth received a four month conditional sentence plus 12 months of probation.[5]
  • An employee who assaulted an elderly patient in a long term care facility (the assault was captured on video) received a 5 month jail sentence plus 3 years of probation.[6]
  • A man who assaulted his elderly mother and failed to provide the necessaries of life received 30 days of jail plus 1 year probation.[7] 
In considering the appropriate sentence, the Court in Dumo, cited Justice MacKinnon in R. v. Foubert 2009 CarswellOnt 7236 at paras 31-32, (http://canlii.ca/t/26qk8):
Caregivers must know that if they abuse their position of trust and authority over vulnerable individuals, the court shall deal with them harshly. Caregivers often work in environments where witnesses are not present. As such, they must deal with those entrusted to their care in the utmost good faith. Families who entrust their aged parents to institutions often do so with a sense of overwhelming guilt and desperate resignation. They have the absolute right to expect that those entrusted with the care of their aged parents will, at all times, act professionally, and within the bounds of the law.
In my view, the only way to ensure that this bond of trust remains intact is for the courts to determine that caregivers who breach that trust will be sent to jail.
Justice Bascom also made note of the 2013 amendments to the Criminal Code's sentencing provisions under the Protecting Canada's Seniors Act,[8] in particular the addition of section 718.2(a)(III.1) (link to canlii reference, link to justice.gc.ca reference);   and that requires consideration of any "evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation".[9]
Each of the three offenders was sentenced to 60 days in jail followed by a period of probation (to be determined at a later date). The Court concluded that "[t]his provides a sentence that denounces and deters such behaviour as well as incorporates rehabilitation."[10]
While such a sentence may be legally appropriate with respect to all of the sentencing considerations (including the fact that all three were first time offenders and apologized for their actions) it does not take away from the fact that a 92 year old man lived out his final days in fear.

[1] R v Jackson 1993 CarswellNB 158.
[2] R v Foubert 2009 CarswellOnt 7236.
[3] R v Lozado 2013 CarswellOnt 18810.
[4] R v Donovan 2013 CarswellNS 68.
[5] R v Johnson 2013 CarswellSask 333.
[6] R v Lamsen 2014 ONCJ 670.
[7] R v Zubowski 2010 CarswellOnt 10430.
[8] S.C. 2012, c.29.
[9] R.S.C. 1985, c. C-46, s. 718.2(a)(III.1).
[10] 2015 ABPC 219 at para.37.

Globe and Mail Article: Should You Consider Long Term Care Insurance?

by Laura Cardiff

This week's Globe and Mail contains an interesting article on the possible benefits and down sides of long term care insurance. Many people have no idea such a product exists to help them plan for the uncertainties of old age. Others are operating under the mistaken assumption that the government-funded health care system will cover their care needs as they age.

The article contains an informative juxtaposition of two viewpoints. Stephen Frank, vice president of Canadian Life and Health Insurance Association, presents the arguments in favour of long term care insurance, outlining the important role insurance can play in filling a gap between people's ability to save for retirement and their potential needs. In contrast, Rona Birenbaum, a financial planner and owner of the organization Caring for Clients, emphasizes the benefits of saving carefully, rather than relying on insurance plans with very high premiums, which may increase over the life of the policy.
We should all be considering and planning for the various health care concerns we might face as we age, and for that reason, this article is recommended reading for everyone.

What the article does not address, however, is the risk that people may responsibly save enough money to cover any care costs required, only to have that money not put to its intended use when they most need it. Estates practitioners often encounter situations involving elderly clients who have saved for retirement, and are well positioned to pay for any care required. However, they are no longer capable of managing their property, and their substitute decision maker - generally acting under a Power of Attorney for Property - is reluctant to sell the family home, or cash in the investments, as required to pay for that care. For the family members of the elderly person, these assets represent a potential inheritance.

See, as just one example, the recent Court of Appeal case of Heston-Cook v. Schneider, 2015 ONCA 10. In this case, one sister, the plaintiff, brought an action against the other sister, the defendant, who had been acting as their deceased mother's attorney for property before her death. The plaintiff alleged the defendant put her own interests ahead of the deceased's by maintaining the deceased in her home and not moving her into a nursing home. Under the terms of the deceased's will, the defendant stood to inherit any home the deceased owned on her death, and it was therefore in her interest to ensure the deceased's home was not sold to pay for her long term care.

While the defendant may not have had any such self-interested motivations in choosing to keep her mother in her home (the court did not determine this issue), the temptation for some family members is simply too great when they are when faced with a choice between spending their potential future inheritance on an elderly relative's expensive care, or cutting corners where possible.

In light of such situations, long term care insurance offers one advantage that is not mentioned in the Globe and Mail article: it offers the certainty that, provided the insurer's conditions are met, long term care will indeed be paid for if needed. People who prefer to save for retirement may wish to consider ensuring their wishes with respect to care, and their intentions with respect to the use of their assets to pay for that care, are documented and well known to their substitute decision makers.

STEP Passport Series
February 17, 2016
Post Mortem Planning - Private Corporation Shares
Moderator: Joan Jung
Speakers: Michael Atlas, Brian Nichols
Estates and Succession Practice Group, Ottawa
March 2, 2016, Skype Presentation
Capacity - the lawyer's task and the importance of notes - Is capacity a medical or a legal test? Why the answer might surprise you, and why you will wish you had cared
Speaker: Kimberly Whaley
Barreau du Québec, Montreal
March 18, 2016
Predatory Marriages: Legal Capacity to Marry and the Estate Plan
Speaker: Kimberly Whaley
STEP Passport Series
April 13, 2016
Insurance in Estates and Trusts
Moderator: Harris Jones
Speakers: Ted Polci, Glenn Stephens
Estate Planning and Litigation Forum
Langdon Hall, London, ON
April 24.26, 2016
Ontario Police Conference
Elder Abuse Seminar
April 26, 2016
Speaker:  Kimberly Whaley
LSUC, The Six-Minute Estates Lawyer 2016
May 3, 2016
Administration of Insolvent Estate
Speaker: Benjamin Arkin
Toronto Police College, Elder Abuse Investigators Course
May 12, 2016
Elder Abuse presentation
Speaker: Kimberly Whaley
STEP Passport Series
May 18, 2016
Planning Using Trusts
Moderator: Brian Cohen
Speakers: Rachel Blumenfeld, Prof. Albert Oosterhoff
B'Nai Brith Seminar
June 21, 2016
Speakers: Kimberly Whaley and Arieh Bloom
Estates and Succession Practice Group, Ottawa
June 1, 2016, Skype Presentation
Serving the executor- the lawyer's dual role
Speaker: Arieh Bloom
LSUC, Administration of Estates 2016
September 20, 2016
Chair: Kimberly Whaley and Timothy Grieve
Toronto Police College, Elder Abuse Investigators Course
October 20, 2016
Elder Abuse presentation
Speaker: Kimberly Whaley
LSUC Summit
November 2016
Solicitor's Negligence
Speakers: Kimberly Whaley and Lionel Tupman

Dissatisfied litigant unable to sue PGT, either as substitute decision maker or as allegedly negligent solicitor

4th Annual World Congress on Adult Guardianship is upcoming on September 14-17, 2016

The Privy Council's Ruling on Backwards Tracing: Part of a Larger Movement Toward a Common Sense Approach to Tracing?

Suggested Amendments to the Substitute Decisions Act Would Create Mandatory Reporting of Senior Abuse

The Older Adult-Can we live forever? Interesting developments around the world-sharing in the longevity quest

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