DATE: 20050615

DOCKET: C42632

COURT OF APPEAL FOR ONTARIO

RE:

MARY WINGATE also known as MARY ROBINSON, ANDREW WINGATE and BEVERLY MAUREEN CROUCH (Appellants) – and LAURIER LIFE INSURANCE COMPANY, DESJARDINS FINANCIAL SECURITY LIFE ASSURANCE COMPANY carrying on business under the firm name and style DESJARDINS FINANCIAL SECURITY, BRECKLES LIFE INSURANCE AGENCIES AND FINANCIAL SERVICES INC., THE ESTATE OF DAVID GEORGE MOON and JENNIFER MOON (Respondents)

BEFORE:

MOLDAVER, ARMSTRONG and JURIANSZ JJ.A.

COUNSEL:

Patrick Di Monte

for the appellants

Lisbeth Hollaman

for the respondent Jennifer Moon

HEARD:

June 14, 2005

On appeal from the order of Justice Wailan Low of the Superior Court of Justice dated October 29, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] Appeal against Laurier Life Insurance Company and Desjardins Financial Security Life Insurance Company dismissed as abandoned.

[2] In our view, Justice Low came to the correct conclusion on the record before her. At no point during the currency of the policy were the Wingates ever named as beneficiaries, including the five-year timeframe in which they owned the policy. They chose, for whatever reason, to assign the ownership of the policy back to Mr. Moon and in the circumstances, it was open to him to designate Ms. Jennifer Moon as the irrevocable beneficiary. In our view, without deciding the appellant’s “declaration” and “trust” agreements, they are overtaken by the events which occurred after the policy came into existence.

[3] Accordingly, the appeal is dismissed with costs to the respondent on a partial indemnity basis fixed at $10,000 inclusive of G.S.T. and disbursements.