Court File and Parties
COURT FILE NO.: 16-67100 DATE: 2017/01/18 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christopher Soulliere by his Guardian, Martin Soulliere Applicant
- and -
Intact Insurance Company Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Derek G. Nicholson, for the applicant
HEARD: In writing and without notice
Endorsement
[1] This endorsement is further to my endorsement dated January 16, 2017 with respect to the approval of the settlement reached of the claim for Statutory Accident Benefits of Christopher Soulliere (“Christopher). The settlement reached, in the amount of $950,000 in total, was approved save and except that I raised a concern as to the manner in which it was proposed that the structured portion of the settlement would be paid to the applicant.
[2] The draft judgment filed with the Court provided that the structure payment is to be made “[t]o Martin Soulliere, Guardian of Property of Christopher Joseph Jean Soulliere, for the benefit of Christopher Joseph Jean Soulliere”. Christopher is a person under a disability. His father Martin Soulliere (“Martin”) is Christopher’s guardian of property.
[3] In summary, my concerns with respect to the manner of payment of the structured portion of the settlement were as follows:
- There was no evidence to support payment to anyone other than Christopher of the structure payments.
- From a practical perspective, Martin is, in his capacity as the guardian of property for his son, able for Christopher’s benefit to access funds in Christopher’s bank account. Monies paid to Christopher would be deposited to Christopher’s bank account and available for Martin to access for his son’s benefit.
- Should anything happen such that Martin is no longer able to act as guardian of property for Christopher (a) the funds in the bank account would remain in Christopher’s name and available for his benefit; and (b) the structure payments would continue to be made to Christopher and presumably deposited in a bank account in his name.
- I also questioned the extent to which Martin would be obligated pursuant to the provisions of the Substitute Decisions Act, 1992 to account for funds paid to him directly even if for Christopher’s benefit.
[4] I therefore revised the wording of the draft judgment to identify “Christopher Soulliere” as the payee for the structured portion of the settlement.
[5] I required counsel for the applicant to have McKellar Structured Settlements Inc. review the revised draft judgment (a copy of which is attached as Schedule ‘A’ to my January 16, 2017 endorsement). I did so in an effort to ensure that the tax-free status of the structure payments and the Canada Revenue Agency compliance of the draft judgment was not compromised by reason of the changes I made to the document.
[6] On January 17, 2017, counsel for the applicant sent to my attention a copy of a letter dated the same date from James S. Moore of McKellar Structured Settlements Inc. In his letter, Mr. Moore:
a) Confirms that the revised draft judgment attached as Schedule ‘A’ to my January 16, 2017 endorsement is “structure compliant and will preserve the tax-free quality of Christopher Soulliere’s AB structure payments”; and b) Advises that the revised draft judgment contains “one structure error” that requires correction. The error relates to the payee of the structure payments.
[7] With respect to item (b) above, Mr. Moore states that “the underwriting annuity insurer, BMO Life Assurance Company, would be unwilling to make the structure payments to Christopher in his own right, because it would not be released and discharged with respect to any payments that it made to an incapable person.” As a result, Mr. Moore recommends that the structure payee identified in paragraph 1(b)(i) of the judgment be changed back to read as follows, “To Martin Soulliere, Guardian of Property of Christopher Joseph Jean Soulliere, for the benefit of Christopher Joseph Jean Soulliere” [emphasis, added].
[8] Mr. Moore states that if the requested change is made (i.e. the reversion to the original wording suggested), then “the revised Judgment will be entirely in order from a structure perspective.” I accept the letter from Mr. Moore as evidence in support of payment of the structured portion of the settlement to someone other than Christopher. I have made the requested changes to paragraph 1(b)(i) of the draft judgment and they are reflected in the copy of the document attached as Schedule ‘A’ to this endorsement.
[9] In the concluding paragraph of his letter, Mr. Moore suggests that “it might be in order” to have the non-structured portion of the settlement also payable “to Martin Soulliere, Guardian of Property of Christopher Joseph Jean Soulliere, for the benefit of Christopher Joseph Jean Soulliere”. I had, in the draft judgment, made the same revision to the name of the payee of the non-structured portion as I had with respect to the structured portion of the settlement. I did so for the reasons cited above in paragraph 3. The non-structured portion is in the amount of $159,994.78.
[10] Once again, I accept Mr. Moore’s suggestion or recommendation in that regard. I have made the requested changes to paragraph 1(a)(ii) of the draft judgment and they are reflected in the copy of the document attached as Schedule ‘A’ to this endorsement.
[11] I stated in my January 16, 2017 endorsement that at no time was I concerned that Martin was acting other than in his son’s best interests. I was not concerned in any way with respect to the manner in which Martin had been managing Christopher’s funds. I approved the proposed plan for the management of the non-structured portion of the settlement.
[12] For the reasons set out in my January 16, 2017 endorsement, I am confident that Martin continues to have his son’s best interests at heart. I leave it in Martin’s hands to fulfil his obligations as the guardian of property for his son in accounting for the funds received pursuant to the structured and non-structured portion of the settlement.
Madam Justice S. Corthorn Date: January 18, 2017