Graham v. Graham, 2019 ONSC 3632

COURT FILE NO.: 16-56128 DATE: 2019-06-11 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF Jacqueline Pearl Graham, deceased

BETWEEN:

Timothy Graham, Applicant – and – Robert Graham, Steven Graham and Christine Graham, Respondents

COUNSEL: Derek Fazakas, for the Applicant Robert Graham, in person No one appearing for Steven Graham and Christine Graham

HEARD: July 6, 2018, October 5, 2018 and February 22, 2019

Justice L. Sheard

Overview

[1] The applicant, Timothy Graham (“Tim”), is one of four children of the late Jacqueline Pearl Graham (“Jackie”). Tim brings this application to challenge the validity of the Last Will and Testament [^1] and Power of Attorney, Jackie signed on December 23, 2015 (respectively, the “Will” and the “POA”).

[2] The respondents are Jackie’s other three children. Steven Graham (“Steven”) and Christine Graham (“Christine”) have not filed Notices of Appearance and did not take part in this hearing. Robert Graham (“Robert”) asks that the application be dismissed and the Certificate of Pending Litigation registered against Jackie’s house at 52 Chatham Street, Hamilton, Ontario (the “House”) be discharged.

[3] The Will and POA were prepared by lawyer Martin Vamos (“Vamos”). The Will named Robert as estate trustee and sole beneficiary, and the POA named Robert as Jackie’s sole attorney for property. Robert’s wife, Tammy Graham, (“Tammy”) is named as alternate estate trustee and attorney.

[4] Jackie died of cancer on January 8, 2016.

[5] On January 4, 2016, Robert used the POA to transfer the House to himself as sole owner. For this application, I am asked to assume that Jackie’s estate essentially consisted of the House and its contents. There was little evidence about how much cash was in Jackie’s bank account as at her death. Based on evidence from Vamos as at December 22, 2015, Jackie believed she had between $1,000 and $1,500 in the bank.

Preliminary Matters

The Evidence

[6] The parties agreed that a trial was not necessary and it was appropriate for the application to be determined on a paper record. The record consists of affidavits, transcripts of examinations and cross-examinations on affidavits, and records relating to Jackie’s medical and other care. The parties also agreed that I may have resort to the extended powers found in r. 20.04[^2].

[7] At the hearing on July 6, 2018, both Tim and Robert were represented by counsel. A second day of hearing was required, and the matter was adjourned to October 5, 2018. On that date, Robert advised that as of September 11, 2018, he was representing himself. Robert requested an adjournment so that he could prepare for the hearing and prepare and deliver new evidence.

[8] Tim opposed Robert’s request to file new evidence. Tim’s reasons included that, well in advance of the hearing, counsel reached an agreement concerning the delivery of evidence. Out of concern that he might inadvertently reveal privileged communications, Tim did not provide details of the discussions between counsel.

[9] Robert’s adjournment request was granted but on the basis that if he wished to deliver new materials, he would need to seek leave to do so from another judge. To allow Robert time to prepare and bring the leave motion, the hearing was adjourned to February 22, 2019.

[10] Robert did not seek leave to deliver new materials on this application, but he simply filed them with the court office. On February 22, 2019, Robert’s new materials were among the previously-filed materials. As Robert had not sought leave as per my order of October 5, 2018, and Tim maintained his objection to Robert’s filing of new materials, I neither read nor considered Robert’s new materials.

The Procedure

[11] While the parties agreed that I should use the powers that are available to a judge on a motion for summary judgment under r. 20.4(2.1) on this r.14 application, neither referred me to any authority.

[12] R. 38 governs applications. R. 38.10 provides that the presiding judge may grant, dismiss or adjourn the application in whole or in part or direct a trial of the whole application or any issue raised in it.

[13] R.39 governs the evidence that may be used at the hearing of an application and contemplates evidence similar to that which is before me on this application.

[14] R. 20.04 governs motions for summary judgment available in an action. It provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. Hryniak v. Mauldin, 2014 SCC 7[^3] provides guidance on the use and application of the expanded powers found in r. 20.04(2.1). Using that subrule, the court is permitted to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.

[15] In Rubner v. Bistricer, 2018 ONSC 1934[^4], Myers J. considered whether he could use the powers under 20.04(2.1) to determine a r. 14 application. Myers J. determined that, in keeping the Hyrniak principles and approach, when the materials permitted the court to resolve factual issues, “the court should dispose of the issues in a summary fashion without a trial of the issues.” [^5] Based on the materials before him, Myers, J. concluded that he could use the r. 20.04(2.1) fact-finding powers. At para. 108 Myers J. held:

In the cross applications as between and among the Rubner family, I am satisfied that it is in the interest of justice to resolve these proceedings summarily. All of the parties’ evidence is before the court. Detailed cross-examinations were conducted. I have read thoroughly all of the transcripts. There is no purpose in a trial. In the few instances where drawing inferences, weighing evidence, or credibility findings are required, I am satisfied that the record allows me to find the facts and apply the relevant law. This process has been under way for many months. The family parties intended to and did put their best cases forward. … In all, I am satisfied that resolving these applications summarily is the most proportionate and fair process.

[16] I adopt the reasoning of Myers J. On that basis, I accept the parties’ submissions that I should exercise the powers available under r. 20.04 (2.1), applying the Hyrniak principles to this application.

[17] At para. 66, Hyrniak offers a “roadmap” for a summary judgment motion:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[18] The parties acknowledge that this is a modest estate, consisting mainly of the House and that the risk of consuming the estate in litigation costs is a significant concern. I consider that the key witnesses have either sworn affidavits and/or been examined or cross-examined and that the relevant medical and CCAC records have also been produced. I, therefore, conclude that the Hyrniak goals can be met.

Preliminary Findings of Fact

[19] The following are not in dispute and I find as fact that:

(a) Jackie’s husband and the father of her four children, Grant Graham (“Grant”), died on October 29, 2015, after a long illness;

(b) during Grant’s illness, Jackie was also suffering from cancer. While Grant was ailing, Jackie delayed suggested surgery. Jackie also refused to take certain pain medication because it made her head “foggy;”

(c) shortly after Grant’s death, Jackie was told that her cancer had spread and surgery was no longer a treatment option. She was told that her cancer was terminal and that she was a candidate only for palliative care;

(d) Jackie was affected physically, emotionally, and cognitively by Grant’s death, her own terminal diagnosis, the disease itself and its treatment and management, and medication given for pain;

(e) as of Grant’s death, neither Jackie nor Grant had ever prepared a will or a POA;

(f) Jackie’s disease caused her a great deal of pain, and she was hospitalized from November 22, 2015, to December 7, 2015. Jackie had to return to the hospital on December 22, 2015, because of a “pain crisis”;

(g) in mid-December 2015, Tammy called three different lawyers, searching for one to prepare a will and POAs (for property and personal care) for Jackie. Tammy chose Vamos. Vamos was not known to any of the parties;

(h) Tammy obtained a “Client Information Sheet” (“CIS”) from Vamos’s office. The CIS was to be completed by the client, thereby providing Vamos with information from which he could prepare a will or POA;

(i) on December 22, 2015, Robert returned the CIS to Vamos as completed by Tammy. Although there was a place for Jackie’s signature on the CIS, Jackie did not sign it;

(j) Vamos used the CIS to prepare the Will, the POA, and a medical directive (“POA-PC”) for Jackie;

(k) Jackie was in the hospital from the evening of December 22 to December 24, 2015, to received treatment for severe pain caused by her spreading cancer;

(l) at Robert’s request, Vamos agreed to go to the Juravinski Hospital on December 23, 2015, to meet Jackie and to have her sign the Will, POA, and POA-PC. This meeting was the first contact Jackie had with Vamos and the first time Jackie saw the Will, the POA, or the POA-PC. Vamos brought the fully-completed Will, POA, and POA-PC with him for Jackie to sign;

(m) on December 23, 2015, Vamos was accompanied by his assistant, Tracey Ainsworth (“Ainsworth”). Ainsworth was there to act as the second witness on the Will, the POA, and the POA-PC;

(n) upon their arrival at the Juraviski Hospital, Vamos and Ainsworth met with Robert and Tammy. Vamos asked Robert and Tammy for biographical and other information about Jackie. The four of them then entered Jackie’s hospital room. They discussed the Will and the POA before Vamos asked Tammy and Robert to leave. He and Ainsworth then met alone with Jackie;

(o) Vamos made no notes of any discussions or meeting he had with Tammy, Robert, or Jackie. Or, if notes were made, none were kept;

(p) the morning of December 23, 2015, was the first time Jackie saw the Will, the POA, and the POA-PC or spoke with Vamos. It is likely that this was the first time Jackie ever saw documents of this type;

(q) when she returned to the office that day, Ainsworth prepared a memo to file (the “Ainsworth Memo” [^6]). The Ainsworth Memo is one page in length. It is the only somewhat contemporaneous evidence of what was discussed with Jackie at this meeting;

(r) Vamos prepared a memo to file on February 9, 2016, concerning the Will and POA (the “Vamos Memo”); and

(s) Robert used the POA to transfer the House to himself. To do so, he retained a lawyer, Salvatore Garcia (“Garcia”), to prepare and register the transfer. The Land Transfer Tax Statement with the Transfer shows consideration of $1.00, explained as a “conveyance from mother to son.” Garcia’s file was not included in the materials filed on this Application.

Issues to be decided

[20] Tim’s challenge to the validity of the Will, the POA, and the transfer of the House effected using the POA, is summarized below:

A. The Will is invalid because:

(i) Jackie lacked testamentary capacity;

(ii) Jackie did not have knowledge and approval of the contents of the Will;

(iii) the Will was prepared as a result of Robert’s undue influence exerted upon Jackie;

(iv) suspicious circumstances surrounded with the making of the Will; and

(v) Robert, who seeks to uphold the Will, cannot meet his legal burden of establishing on a balance of probabilities that Jackie knew and approved of the contents of the Will and had testamentary capacity.

B. The POA is invalid because:

(i) Jackie lacked capacity to execute the POA; and/or

(ii) the POA was prepared as a result of undue influence Robert exerted upon Jackie.

C. The transfer of the House to Robert should be set aside because:

(i) the transfer of the House was effected pursuant to an invalid POA;

(ii) as Jackie’s attorney for property, Robert acted in a conflict of interest when he purported to gift the House himself; and

(iii) Jackie lacked capacity to gift the House.

[21] Robert’s position is essentially the opposite of Tim’s: Robert asserts that Jackie had the capacity to execute the Will and POA. Robert relies in large part upon the evidence of Vamos, who determined Jackie to be capable. Robert also disputes that the Will and POA were procured as a result of undue influence.

Execution of the Will and POA and Suspicious Circumstances

[22] It is undisputed that Jackie signed the Will and the POA in the presence of Vamos and Ainsworth, who signed as witnesses. Thus, the formal requirements of due execution have been met.

[23] The parties agree that suspicious circumstances may be raised by (1) the circumstances surrounding the preparation of the Will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator overborne by actions of coercion or fraud (see Vout v. Hay, [1995] 2 S.C.R. 876[^7]).

[24] Vout v. Hay explains that if suspicious circumstances surround the preparation of a will, despite that it was duly executed, the burden of proof of establishing testamentary capacity and of the testator’s knowledge and approval of the contents the will shifts to the person who seeks to uphold the will:

… Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. [^8]

[25] While Robert does not admit that suspicious circumstances exist surrounding the preparation of the Will and POA, it is a central focus of his factum. Given the undisputed facts surrounding the preparation of the Will and POA, a determination of this key issue is an appropriate starting point.

[26] Robert’s position on suspicious circumstances is, that even if it could be inferred from the facts that suspicious circumstances existed, Robert has met his evidentiary burden to show that Jackie had testamentary capacity and knew and approved of the contents of the Will and the POA.

Issue 1: Do suspicious circumstances exist?

[27] The recent decision of Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043[^9] expands upon Vout and enumerates factors which may be considered to determine whether suspicious circumstances exist. At para. 110:

When considering whether there are suspicious circumstances, the court may consider: 1) the extent of physical and mental impairment of the testator around the time the will is signed; 2) whether the will in question constitutes a significant change from the former will; 3) whether the will in question generally seems to make testamentary sense; 4) the factual circumstances surrounding the execution of the will; and 5) whether a beneficiary was instrumental in the preparation of the will [citation omitted].

A. Analysis

[28] Based on the undisputed facts in this case, all five of the above factors are met:

(1) Did Jackie suffer from physical and mental impairment around the time the will is signed? If so, to what extent?

There is evidence that as of December 23, 2015, Jackie was suffering from physical, emotional, and mental impairments. She was grieving and overwhelmed by her husband’s recent death. Jackie’s cancer had metastasized, and shortly after Grant’s death she was told that her illness was also terminal. As of December 15, 2015, Jackie was receiving only palliative care, but the pain medication was not working, and on December 22, 2105, she went to the hospital in a “pain crisis.” Jackie was treated with heavy painkillers on December 22 and in the night and morning of December 23, 2015 - the day she signed the Will and POA.

(2) Did the Will constitute a significant change from the former will?

Until she signed the Will, Jackie had never had a will and would otherwise have died intestate. Had she died intestate, her estate would have been divided equally amongst her four children. Given that both Grant and Jackie had been in ill health for a long time prior to their respective deaths, it is reasonable to infer that, until Robert and Tammy’s involvement on this issue, Jackie had chosen to die without a will. Thus, the Will constitutes a significant change.

(3) Does the Will make “testamentary sense”? Does the POA make sense?

The complete answer to these questions depends on what portions of the disputed evidence are accepted. However, set out below are the facts as I have found them based on uncontradicted evidence.

Why exclude Tim?

Based on the undisputed evidence, it is apparent that the reasons Jackie gave to Vamos for excluding Tim as a beneficiary of her estate were factually incorrect:

• The Ainsworth Memo states that Jackie was very angry with Tim because he had not attended Grant’s funeral and she had not seen him for two years. Robert acknowledges that neither of these statements is correct. It was another brother, Steve, who was estranged from the family and who had not seen Jackie for years. It is reasonable to infer that Jackie’s anger at Tim was a significant reason for Tim’s exclusion as a beneficiary;
• Vamos relied, in part, on these statements in his determination that Jackie was competent. Vamos admitted that, after the application had been issued and after Vamos learned that he would be required to give evidence, Robert’s lawyer advised Vamos that Jackie’s statements about Tim were wrong;
• Tim attended the November 5, 2015, funeral and, according to the pastor who presided at the funeral, it was Tim who arranged for the funeral to take place at Tim’s church. Tim also contributed food for the reception following the funeral.

Why exclude Christine?

It is Christine’s evidence that she did not know about the Will. She had no agreement with Robert about being left out of the Will or sharing the inheritance.

• The Ainsworth Memo records that Jackie stated that she believed that Robert and Christine had agreed that Robert would be named as sole beneficiary because Christine did “not want to be involved in any part of” the Will and that Christine and Robert had agreed that Robert would share the inheritance with her;
• Vamos did not verify this information and Christine denies all of it;
• Christine denies that she and Robert ever discussed the Will or agreed that Robert should be the sole beneficiary. The House, Jackie’s main asset, was transferred to Robert prior to Jackie’s death. Robert says that after Jackie’s death, he offered Christine “anything she wished the contents of the home, but she refused.” [^10]

Why did Jackie need a POA?

The only evidence to explain the need for the POA is that Robert was to use it to transfer the House to himself while Jackie was alive so as to save a few hundred dollars in estate taxes.

(4) What are the factual circumstances surrounding the execution of the Will and POA?

Based on the facts set out above, there is no question that Robert, with Tammy’s assistance, was the moving force behind the making of the Will and the POAs. In addition, I further find that with Tammy’s help, Robert orchestrated virtually every aspect of the Will, the POA, and the POA-PC:

• searching for a lawyer;
• providing instructions;
• giving the lawyer information about all aspects of the Will and the POA, on which the lawyer relied;
• arranging for Vamos to meet Jackie in the hospital;
• being in the room with Jackie before Vamos arrived;
• remaining with Tammy in Jackie’s room Jackie for part of Vamos’ meeting with Jackie and took part in the discussions concerning the Will and POA;
• at Vamos’ request, stepping out of the room with Tammy so Vamos could meet alone with Jackie, but remaining in the hospital; and
• after they were executed, retaining the Will, the POA, and the POAC-PC.

The factual circumstances also include Jackie’s medical condition, about which there is no dispute that Jackie had been hospitalized in the evening of December 22, 2015, because she was experiencing a pain “crisis,” for which she was treated with heavy painkillers. To treat her pain, Jackie had been given Hydromorphone at 3:02 a.m. on December 23, 2015, and at 8 a.m., she received a further dose of 12 mg of Hydromorphone, an opioid painkiller. [^11] During the meeting of December 23, 2105, Jackie was in her hospital bed, catheterized, and on an I.V. drip.

The time Vamos spent and the poor records of what was discussed is also relevant. Again, based on the uncontradicted evidence, I find that:

• Juravinski Records suggest that Vamos may have spent a total of 20 or 21 minutes with Jackie, including the time during which Robert and Tammy were present; [^12]
• there is no evidence that Jackie was given the Will, POA, and the POA-PC to read and/or whether any of those was read to her. Neither Vamos nor Ainsworth made notes while meeting with Jackie. The Ainsworth Memo, the Vamos Memo, Vamos’ affidavit and his cross-examination are silent on this point. I infer that, while some aspects of these documents were discussed, Jackie was not given the Will, POA, nor the POA-PC to read and they were not read to her;
• Vamos made no inquiries of Jackie’s treating doctors or any medical professional about Jackie’s medical condition at the time she signed the Will and POA and/or about the effect on Jackie’s ability to understand the documents presented to her to sign; and
• Vamos relied entirely on Robert and Tammy to provide him with all information concerning the Will and POAs. Vamos did not independently verify any of what Robert and/or Tammy had told him.

[29] My findings of fact above would, alone, suffice to establish that suspicious circumstances surrounded the preparation and execution of the Will and POA.

(5) Was Robert or his wife, Tammy, instrumental in the preparation of the Will and POA?

Based on my findings of facts set out above, the answer to the above question is an unconditional “Yes.” In addition to those facts, Robert admits that:

• he did not have a particularly good relationship with Jackie until after Grant died (October 29, 2015) and Jackie became ill, at which time Jackie required a great deal of assistance. From and after that time, Robert and Tammy were with Jackie on a daily basis and, after Jackie’s hospitalization, they were constantly at Jackie’s side; [^13]
• the identified purpose for the POA was to allow Robert to transfer the House to himself, which he did in early January 2016;
• Robert and Tammy arranged for Vamos to attend the hospital on December 23, 2015, and they, not Jackie, provided Vamos with details of Jackie’s marital and family circumstances, her assets, and explained why Jackie wanted to exclude her three other children as beneficiaries; and
• Jackie’s reason for excluding Christine from the Will was based on information she received from Robert that Christine wanted nothing to do with the Will and had agreed that Robert was to be named as sole beneficiary under the Will. Jackie had been told that Robert had agreed to share his inheritance with Christine. [^14]

B. Disposition of Issue 1: Do suspicious circumstances exist?

[30] Based on the evidence set out above, I have no hesitation in finding that that suspicious circumstances exist surrounding the making of the Will and the POA.

[31] As a result of that finding, the legal burden of proving that Jackie had testamentary capacity and knew and approved of the Will and the POA shifts to Robert. If the evidence on which Robert seeks to rely cannot establish that Jackie had testamentary capacity and knew and approved of the Will and the POA on a balance of probabilities, then Tim’s application must be granted.

Issue 2: Has Robert met his legal burden to prove that Jackie had testamentary capacity and knew and approved of the contents of the Will and POA?

[32] Ontario courts continue to follow and apply the test for testamentary capacity found in [Banks v. Goodfellow (1870), L.R. 5 Q.B. 549][^15]:

It is essential to the exercise of such a power [of testamentary capacity] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

[33] The onus on a Robert is to establish, on the evidence, that Jackie:

(a) understood the nature and effect of a will;

(b) was able to recollect the nature and extent of her property;

(c) understood the extent of what she was giving under the will;

(d) remembered the persons that she might be expected to benefit under the Will; and

(e) understood the nature of the claims that may be made by persons she excluded from the Will. [^16]

[34] The test to be met to prove testamentary capacity is a high one and the evidentiary onus falls on Robert, who, by asking for the dismissal of this application, seeks to uphold the Will. It is not sufficient simply to show that Jackie had the capacity to communicate her testamentary wishes. Robert must also show that Jackie’s expressed wishes were the product of a sound and disposing mind. [^17]

[35] I find the evidence to establish that Jackie understood the nature and effect of the Will to be insufficient to meet Robert’s onus.

[36] Absent in the evidence is any mention of Vamos introducing himself as the lawyer who was there to see her to discuss her will and powers of attorney. Reference to the Will and powers of attorney is found in paras. 6-9 of the Ainsworth Memo, from which I infer that Vamos explained to Jackie the purpose of his visit:

Martin [Vamos] asked her [Jackie] about her other 3 children, Steven, Christine and Timothy and the fact that they are not mentioned in her Will or Powers of Attorneys that only her son, Robert and his wife, Tammy were listed. He talked to her about the fact that the other 3 children could cause problems if they did not agree.

The client has told us that her son, Tim had not seen her for roughly 2 years and her son, Steven has not seen her in months.

Her daughter, Christine she sees often and speaks to her on the phone almost every day and she does not want to be involved in any part of the will but she and her brother, Robert have agreed that he will share the inheritance with her. Mom is okay with this and trusts Robert to just as he and his sister have told her.

Client understands that her son, Tim may give Robert a hard time about the will but did not want to change it. She was very certain this is how she wanted it.

[37] As mentioned above, absent from the evidence is any record that Jackie saw or read the Will, the POA, or the POA-PC. Without evidence that Jackie read those or that they were read to her, it is difficult, if not impossible, for Robert to establish that Jackie knew and approved of the contents of the Will and POAs.

[38] The evidence that Jackie recollected the nature and extent of her property is also missing. Jackie knew where she lived, but there is no evidence that she had any knowledge or understanding of the monetary value of the House - i.e. the extent of her property. Jackie had lived in the House since 2002 and became the owner through inheritance in 2007. It is reasonable to infer that in the intervening 15 years, Jackie would have seen a Notice of Assessment or otherwise been exposed to some information by which she would have had some idea of the value of the House. However, the extent of her knowledge cannot be discerned from the evidence.

[39] As for Jackie’s understanding of what she was giving under the Will and to whom, the evidence is also somewhat unclear. Jackie told Vamos that Robert was going to be named as sole beneficiary because Christine and Robert had an agreement whereby Robert would share the inheritance. Jackie’s statement that “she trusts Robert to do just as he and his sister have told her” begs the question: what had Jackie been told? That question was not asked.

[40] Despite that the Will and POA instructions came from Robert, who alone benefits from those instructions, there is no evidence to that Vamos pressed Jackie to explain what she understood to be Christine’s wish “not to be involved in any part” of the Will. For example, did Jackie understand Christine’s concern was about being named as an estate trustee? Or was Christine concerned about being identified as a beneficiary?

[41] By accepting Jackie’s statements at face value, Vamos lost the opportunity to establish that Jackie could do more than repeat what she had been told. Moreover, Robert is left without the evidence he needs to establish that the wishes that communicated by Jackie were “the product of a sound and disposing mind.” Rather, given Robert’s role in the preparation and execution of the Will and the POA’s, the inference more readily drawn is that Jackie was saying and doing what Robert had told her.

[42] As Christine denies ever discussing the Will or having an agreement with Robert to share the estate, it is reasonable to infer that it was Robert who told Jackie about Christine’s wishes concerning the Will and his purported agreement with Christine.

[43] Although he offers no evidence as to the value of the household contents, Robert suggests that by offering to give Christine the contents, he is following through on his agreement to “share” the inheritance. Christine’s refusal to accept Robert’s offer speaks volumes about her view of his offer and informs the court of Robert’s notion of “sharing” the inheritance.

[44] On her examination, Christine was asked whether she can explain why Jackie left her estate to Robert in the Will. Christine answered [^18]:

I’m lost, when I found that out, that that’s what happened. But it wasn’t talked – we weren’t ever taken aside and said, “This is what mum’s wishes were,” and… we didn’t even know about the will being drawn up or anything…

[45] Robert has not put forth evidence to explain away Jackie’s mistaken belief that Tim did not “even shown up” or participate in Grant’s funeral that took place in early November 2015, less than two months before December 23, 2015.

[46] To corroborate his involvement in Grant’s funeral, Tim put forth an affidavit from Dwayne Cline, the pastor who presided over the funeral. Mr. Cline states that not only did Tim attend Grant’s funeral, but Tim and his wife, Amy, “played a vital part in arranging the funeral and reception.” On November 1, 2015, a few days before the funeral, Mr. Cline went to the House. It was Tim who introduced Mr. Cline to Jackie and other family members. Mr. Cline spoke with Jackie several times around that time he recalled that Jackie seemed at a loss as to what to do and said more than once that she was “thankful for the effort that Tim and Amy put forth in arranging Grant’s funeral.”

[47] I accept Mr. Cline’s evidence and find that it goes beyond establishing Tim’s involvement in Grant’s funeral: Mr. Cline’s evidence also supports and corroborates Tim’s evidence that he was on good terms with Jackie following Grant’s death.

[48] Robert acknowledges that Jackie was wrong when she told Vamos that she had not seen Tim for roughly two years and that Jackie was also wrong about when she had last seen her son Steven. It is Steven whom Jackie had not seen for roughly two years and who did not attend Grant’s funeral.

[49] Vamos based his determination that Jackie had testamentary in part on his belief that Jackie was correct in her statements to him about Tim and Steve. That Jackie was confused and/or mistaken in her beliefs about Tim and Steven seriously undermines Vamos’ determination and places a heavy onus on Robert to provide other evidence to show that Jackie had testamentary capacity.

A. Was Jackie suffering an insane delusion?

[50] Tim submits that Jackie’s wrong belief that he failed to attend Grant’s funeral, which angered her, appears to have been a significant reason for excluding him as a beneficiary in the Will and should be characterized as an “insane delusion” or as coming from a “deranged mind.”

[51] In Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. S.C.)[^19], the court considered a will in which the testator had excluded his children based on the testator’s belief that the children did not care about him. The court observed that “insane” delusions are not limited to beliefs that are so bizarre that their content, by itself, evidences mental disorder but included beliefs whose extreme improbability is apparent only when the surrounding facts are known. The question to ask is whether the belief should be characterized merely as quite unreasonable on the one hand or as something that in the particular circumstances, no one “in their senses” could believe. In other words, considering all the facts and circumstances, is it fairly shown that the will proceeded from and on account of a deranged mind? [^20]

[52] The court further found that the existence of a testator’s insane delusions will not invalidate a will; the delusions must have affected the dispositions in the will. [^21]

[53] Based on the evidence of what was discussed when Jackie signed the Will, Jackie’s belief that Tim had not seen her for two years and did not attend Grant’s funeral conflicts with what she must have known had she had not been cognitively impaired. Further, I conclude that her misplaced anger based on her belief about Tim affected her decision to exclude him as a beneficiary under the Will.

B. Can the medical evidence still permit a finding of capacity?

[54] The evidence of Jackie’s direct involvement in the Will and the POA is limited to her meeting with Vamos and others on December 23, 2015. As stated in [Ostrander v. Black (1996), 12 E.T.R. (2d) 219 (Ont. Ct. J (Gen. Div.)][^22], “[t]he propounder of a will bears the onus of proving that the testator had the requisite capacity at the time the will was made .” The Juravinski Records reference a family meeting to review documents that occurred between approximately 10:07 a.m. and 10:21 a.m. on December 23, 2015. [^23] That timeframe is consistent with the evidence of Vamos that he was back in his office by approximately 11 a.m. Therefore, the onus is on Robert to show that Jackie had testamentary capacity at that time.

[55] Jackie’s extensive medical and homecare records show some fluctuations in Jackie’s physical, emotional, and mental state from the fall of 2015 to December 2015. At times, Jackie was quite disabled by pain. While Grant was alive, Jackie refused certain narcotic pain medication because she did not want to be “loopy.” [^24] Jackie found Oxycocet to be too strong and gave her “confusion and drowsiness.” [^25] In mid-October 2015, Jackie refused to take Percocet because it made her “confused.” [^26] On October 23, 2015, Jackie was prescribed Dilaudid,1-2 mg q4th [^27] but did not want to continue with that drug due to drowsiness. [^28]

[56] After Grant’s death, Jackie was suffering from insomnia and severe chest pain. On November 11, 2015, Jackie was told to resume using Dilaudid. [^29] The Dilaudid did not resolve Jackie’s pain, and she was prescribed Hydromorph Contin [^30] 3 mg every 12 hours. Jackie reported that this medication helped with pain without side effects. [^31]

[57] Tim, however, submits that Jackie was confused by the Dilaudid as evidenced by the incorrect information Jackie gave to a CCAC worker on November 12, 2015, that her husband was on dialysis (Grant was deceased) and that she had a son Steven but was estranged from her two other sons. [^32]

[58] From and after November 13, 2015, Jackie’s doctors increased the dosage of Dilaudid. By December 7, 2015, Jackie was taking 9 mg every 12 hours, 3 mg at noon and 1 mg every 6 hours as needed. [^33] On November 22, 2015, Jackie was taken by ambulance to St. Joseph’s Hospital. The medical record notes that Jackie was “not functioning well at home. Was in significant pain. Missed pre-op apt. on Friday because she was feeling too sick. Wasn’t organized with medications.” [^34]

[59] Jackie was hospitalized from November 22, 2015, to December 7, 2015. On December 4, 2015, Jackie reported to her social worker that she was very overwhelmed with her new diagnosis while also trying to deal with all the paperwork required as a result of Grant’s death. [^35]

[60] In the CCAC assessment of December 11, 2015, Jackie is noted to live alone in the house and that her husband died in October 2015, and she is still grieving. She has four children but only has a relationship with her son Tim who lives close by and is supportive. Jackie had increased fatigue and spent most of her day lying on the sofa. Jackie was in pain and tearful during the home visit and was in pain/discomfort and having difficulty answering questions; she became overwhelmed during assessment and asked that the home visit be ended. [^36]

[61] Jackie’s reference to Tim further conflicts with what Jackie told Vamos about Tim. It also conflicts with Robert’s assertion that Tim was not involved with Jackie at this time and that Tim had a falling out with Jackie and did not have a good relationship with her.

[62] In the Palliative Care Assessment Form dated December 15, 2015, it was noted that Jackie had some difficulty in new situations; periodic disordered thinking or awareness, which was different from her usual functioning; and that her decision-making ability had declined from the last assessment. The section notes, under the heading “cognition,” state that Jackie “admits to getting forgetful, son assists with planning appointments etc.” [^37]

[63] Jackie attended the Juravinski Hospital on the evening of December 22, 2015. She was received on a stretcher but was noted to be alert and oriented, talking in full sentences, and reporting pain in her back, right shoulder, and arm. She was treated with Hydromorphone for the pain, with little effect. That treatment helped with the pain, and she was sleeping on the stretcher just after 9:30 p.m. [^38]

[64] The Juravinski medication records indicate that Jackie was treated with Hydromorphone at 3:02 a.m. on December 23, 2015, and received 12 mg of Hydromorphone at 8 a.m. [^39]

[65] The entry at 11:50 a.m. on December 23 reads: “Pt unaware of why she is admitted and is feeling like she needs to talk with physician.” [^40] Tim submits that note above suggests that Jackie was confused.

[66] Robert points to the medical records after December 23, 2015, to support a finding that Jackie was mentally competent. Jackie was discharged on December 24. Under “Mental Status,” the Occupational Therapy Discharge Report states “Intact.” [^41] Jackie returned to the hospital by ambulance on December 27, 2015, and upon admission was noted to be “alert and oriented x3.”

[67] This record does appear to raise some concern about Jackie’s capacity as Jackie apparently told the hospital that she would like to remain on a “Full Code” but Robert advised that he had Jackie’s POA-PC in which she indicated that she did not wish to be resuscitated. Robert advised that he would bring the POA-PC to the hospital the following day to clarify it with Jackie. [^42]

[68] The medical records generally support a finding that Jackie was able to communicate and was “oriented x3”, which I understand to mean that she was not confused about who she was, where she was, and the date. They also show that Jackie was able to speak in full sentences on and after December 23, 2015, and that she continued to be “oriented x3” into 2016.

[69] However, the point in time that is of concern here is the approximately 21 minutes on December 23, 2015. The medical records for this time period time do not respond to concerns about Jackie’s capacity identified above in these reasons. At most, the medical records document that Jackie could talk in full sentences. Given all the evidence, that statement does not allow Robert to meet his evidentiary burden.

C. Can Vamos’s evidence discharge Robert’s burden to establish Jackie’s testamentary capacity?

[70] In the Vamos Memo, Vamos makes the following notes about Jackie:

She was quite clear that she was residing at an address on Chatham Street where she and her late husband had lived for several years prior to his death earlier in the fall of 2015.

My recollection at this point which I am dictating on February 8, 2016 is that her husband had died in late October, 2015 and that at that time her son Timothy had not even shown up or participated in the funeral for his father. She was quite upset about this.

She was quite clear that the only beneficiary that she needed to have in the Will was her son Robert and that she trusted her son Robert to share the estate with himself and her daughter Christine and that there was no need to have arrangements made where Christine was also participating in the will.

[At page 2]

At the time that the Will and the power of attorney were being signed I had discussed with Jacqueline about the uses that were going to take place with regards to the Will and the powers of attorney. Jacqueline was aware that her son Robert was going to be taking the power of attorney and creating a transfer of the property from her name to his name so that it would not form part of the estate. She was aware that this was going to be happening and had no concerns about it.

It is quite clear to me that Jacqueline was quite capable of understanding the significance of the Will and power of attorney decisions.

She was aware where her assets were.

She was aware that she was at the Juravinski Hospital and being treated for Cancer.

She was aware that her husband had recently died and who the children were that attended at the funeral and things of that nature.

[71] As set out in these reasons and considering what is set out in the Vamos Memo, given that Vamos bases his belief that Jackie was capable of understanding “the significance of the Will and power of attorney decisions” upon the accuracy of Jackie’s statements to him about “who the children were and who attended the funeral and things of that nature,” Vamos’ determination of Jackie’s capacity cannot be relied upon.

D. Observations of other witnesses

[72] Christine was asked about Jackie’s mental state in the final weeks of her life. Christine described Jackie as “not the person that I thought she was anymore…she was definitely medicated, she just was not herself… Not just on that day but for probably 2 weeks prior to that…” [^43]

[73] Christine’s evidence was that when Jackie became quite ill, Robert and Tammy controlled who was able to visit Jackie and went out of their way to ensure that one of them was present when Christine visited Jackie.

[74] Tim’s evidence is that, based on his observations of Jackie in November 2015, he thought she might have Alzheimer’s disease. Tim does not offer any concrete examples of his observations, if any, of Jackie in or around December 23, 2015.

[75] In her affidavit, Jackie’s sister-in-law, Heather Graham, stated that she was the one who told Robert and Tammy that Grant was in the hospital, and they came immediately. In her view, Tammy and Robert put their lives on hold to care for Jackie following Grant’s death. That evidence is consistent with Robert and Tammy’s evidence and much of the medical records. Christine and Tim do not really dispute Robert and Tammy’s assistance to Jackie.

[76] Heather Graham states that she was disappointed with Christine and Tim whom, she says, did not visit Jackie or were involved with Jackie’s care. That evidence somewhat conflicts with the CCAC records which identify Tim as being supportive. It also conflicts with the evidence that I accept, that Christine spoke to Jackie daily. I accept that Heather Graham has a reason for her views and conclusions but give only minimal weight to it given the conflicting evidence and because she has appeared to line up behind Robert and Tammy in this dispute.

[77] The evidence of family friends, Christine Bain and Karen Skewes, is that there was a history of difficult relationships between Jackie and her children over the years. That evidence is consistent with the evidence of Tim, Christine, and Robert. I accept that the relationships between Jackie and her children had its problems. However, neither of these witnesses can offer evidence concerning Jackie’s mental state on the morning of December 23, 2015.

E. Analysis

[78] I have exercised the powers under r. 20.04(2.1) with the Hyrniak principles in mind. I conclude it is not against the interest of justice that I do so, and that the need for a trial has thereby been avoided. I further conclude that using the powers will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

[79] The key evidence is uncontradicted and, where required, I am confident that the use of the expanded powers has allowed me to find the necessary facts upon which to apply the relevant legal principles.

[80] I find as a fact that Robert and Tammy were helpful and supportive to Jackie in her final weeks ( i.e. from October 29, 2015, to January 8, 2016). I find that during that time, Robert and Tammy provided a lot of help to Jackie, and they were at her side for much of her days.

[81] I conclude that, at a time when she was reeling from Grant’s death, and her own diagnosis that her cancer was untreatable except from a palliative care perspective, Jackie’s life was taken over by to a significant degree by Robert and Tammy. Their conduct, coupled with Jackie’s failing health and dependence, gives rise to a strong suspicion that neither the Will nor the POA is a reflection of Jackie’s independent intentions.

[82] I further find that Christine provided support to Jackie and kept in regular contact with her. In hindsight, Christine may regret having overly relied on Robert and Tammy to facilitate her visits, but Christine’s close relationship with Jackie is well-documented in the evidence.

[83] I also find that Tim was supportive of Jackie, although not as involved in her care in those final weeks as Robert and Tammy.

[84] I reject Robert’s claim that Tim and Jackie were not on good terms, which, among other things, is contradicted by the CCAC records and the evidence of Mr. Cline and others.

[85] While it would be unfair to conclude, and I do not, that at the time of Grant’s death, Robert and Tammy embarked upon a plan for Robert to become Jackie’s sole beneficiary, that result was achieved solely as a result of their efforts. By taking over every aspect of Jackie’s estate planning, Robert and Tammy created a very high evidentiary burden upon Robert to show that the intentions contained in the Will and the POA truly belonged to Jackie and that she was mentally able to form and express those intentions.

[86] Based on the meagre record of what Vamos discussed with Jackie, I find as a fact that the Will was entirely of Robert’s making; it was what Robert wanted done and what he told Jackie she should do. I find that Robert misled Jackie about Christine’s wishes concerning the Will and that there was little, if any, truth to his promise to “share” the inheritance with Christine. I find that Robert encouraged and told Jackie to trust him. Given her poor health, physical and emotional frailty, and her utter dependence upon Robert and Tammy, Jackie did what Robert wanted her to do.

F. Disposition of Issue 2: Has Robert met his legal burden to prove that Jackie had testamentary capacity and knew and approved of the contents of the Will and POA?

[87] Taken as a whole, I find on the evidence that Robert has failed to meet his evidentiary burden to establish that Jackie had testamentary capacity and that she had knowledge and approval of the Will.

Issue 3: Undue influence

[88] Given my findings above, it may not be necessary to address Tim’s alternate claim that Robert exerted undue influence and thereby procured the Will, so these reasons are not intended to be exhaustive on this issue.

[89] I consider the facts found above on which I determined there to be suspicious circumstances to support Tim’s claim of undue influence in respect of the Will and the POA. I further find that Jackie’s concerns about being able to stay in the House, and the promises Robert and Tammy made that they would help keep her, there support a finding of undue influence. [^44]

[90] Notwithstanding the above, proving undue influence places a high onus on the person making that allegation and requires there to be an element of coercion or involuntariness. [^45] I am not persuaded that Tim has established the latter elements here. Rather than showing that at the material time Robert bullied or coerced Jackie, the evidence persuades me that he took over Jackie’s autonomy in a more subtle way.

Issue 4: The POA

[91] Tim identifies a number of challenges to the POA and the validity of the House transfer.

[92] Based on the evidence, I find as a fact that the House transfer was part of the estate plan to be effected by the Will. The transfer was done solely to save estate taxes.

[93] Robert’s evidence was that Vamos suggested the House transfer as a way to save estate taxes. [^46] Vamos’ evidence on this issue differs from Robert’s.

[94] Vamos was cross-examined on this issue:

Q.81: Did she say why she was giving her entire estate to Robert?

A: She basically, she basically felt that Robert and Tammy would protect Christine’s interests and that this was – this was the best economical way for her to do her estate planning including the – the plan was to have the transfer of the house done before she died so that they could avoid double disbursements to the Province of Ontario. It wasn’t, I don’t think it was a big thing, but it was a few hundred dollars that they were going to save doing the transaction that way. So that was – that was discussed with her.

Q. 154 Thank you. Did you discuss the transfer of Jackie’s house to Robert by way of Power of Attorney with Jackie?

A: We talked about whether or not she wanted to do that. I was led to believe that that was part of the plan that she was putting together regarding the wills and the two Powers of Attorney, that she planned on having a transfer of the house into her son’s name before she died. That was certainly – it was anticipated that the Power of Attorney document for property would be used to assist in completing that transfer. She was aware that there would be some savings in doing that prior to the house forming part of the estate.

Q.155 When you said that you were led to believe that the transfer of her house to Robert was part of her estate plan, were you led to believe that by Robert and Tammy?

A. The three of them together.

Q.156 The three of them meaning?

A. Jackie, Robert and Tammy.

Q.157 So you discussed the transfer of Jackie’s house to Robert in the presence of Robert and Tammy; is that correct?

A. I would say the answer to both, in their presence and privately with Jackie as well.

[95] When Vamos says that “he was led to believe that the House transfer was part of an estate plan,” I infer that the idea came from Robert and not Vamos. In any event, the Robert and Vamos’ evidence is consistent in that the POA was prepared solely to facilitate the transfer of the House while Jackie was alive to save a few hundred dollars in tax. Therefore, I conclude that Jackie did not intend to make an inter vivos gift of the House to Robert. Rather, she agreed to the transfer as a tax-saving way to give effect to the Will.

[96] As I have concluded that Robert has not met his evidentiary obligation to prove the validity of the Will, the transfer of the House must be set aside.

[97] I would also give effect to the following grounds raised by Tim to invalidate the transfer of the House raised at para. 73 of his factum.

A. Presumption of undue influence

[98] The relationship between Robert and Jackie at the time the POA was signed and when Jackie purported to consent to the transfer of the House to Robert, gives rise to a presumption of undue influence. [^47] The burden is on Robert to rebut that presumption.

[99] The facts, as found above, that Robert failed to establish that Jackie had testamentary capacity and knew and approved of the contents of the Will are relevant to a determination of whether Robert has rebutted the presumption of undue influence. I find that he has not.

B. Jackie lacked the capacity to execute the POA

[100] I adopt the reasoning in Nguyen-Crawford v. Nguyen, 2010 ONSC 6836[^48] as considered in Vanier v. Vanier, 2017 ONCA 561[^49] that the onus of establishing capacity falls on Robert given the presence of suspicious circumstances. For the reasons given respecting the Will, I find that Robert has not met his onus of showing that Jackie fully understood the factors listed under s. 8 (1) (a)-(g) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30[^50]. In particular, I find that Robert has failed to establish that Jackie knew her property and its approximate value or appreciated that Robert could misuse his authority.

C. Jackie lacked the capacity to make a gift of the House

[101] As the House represented virtually Jackie’s entire estate, the onus is on Robert to show a level of capacity equal to testamentary capacity. [^51] For the reasons set out above, I find that Robert has failed to show that Jackie had the requisite capacity to gift the House to him.

D. Presumption of resulting trust

[102] The law is clear that a transfer from an elderly and infirm parent, such as Jackie, to an independent adult child, such as Robert, gives rise to a presumption of resulting trust. [^52]

[103] On the facts as I have found them, Robert took title to the House as trustee, in furtherance of the estate plan in the Will and upon his promise to “share” the inheritance with Christine. Therefore, there is both a presumption of resulting trust and direct evidence that a trust was intended. In either case, when he transferred it to himself, Robert did not become the beneficial owner of the House.

Disposition

[104] For the reasons set out above, I grant Tim’s application. The Will and POA are both declared invalid, and the transfer of the House to Robert is set aside.

[105] Should the parties be unable to resolve any accounting or other issues that arise from my order, they may seek a further hearing before me for directions on those issues. If an appointment to address these issues is not sought from the office of the trial coordinator within 21 days of the release of this decision, the parties will be deemed to have settled the issues as between themselves.

Costs

[106] Given my findings, this is a case in which Tim, as the successful party, is entitled to his costs from Robert personally and not from the estate. If the parties cannot agree as to costs, they may contact the trial coordinator’s office within 21 days to arrange a hearing date before me. I will require bills of costs and copies of all offers of settlement. If an appointment to argue the issue of costs is not sought from the office of the trial coordinator within 21 days of the release of this decision, the parties will be deemed to have settled the issue of costs as between themselves.

Sheard J.

Released: June 11, 2019

Footnotes

[^1]: Only a “trued-up” copy of the Will was in evidence. [^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^3]: 2014 SCC 7, [2014] 1 S.C.R. 87. [^4]: 2018 ONSC 1934, at paras. 104-08. [^5]: Ibid, at para. 107. [^6]: A copy of the Ainsworth Memo is appended as a schedule to these reasons. [^7]:, [1995] 2 S.C.R. 876 (SCC). [^8]: Ibid, at paras. 26-27. [^9]: 2011 ONSC 3043, 71 E.T.R. (3d) 210, aff’d 2013 ONCA 225, 304 O.A.C. 349. [^10]: Robert’s affidavit sworn March 2, 2016, at para. 12. [^11]: Juravinski Records, Joint Medical Brief (“JMB”) at pp. 370-71. [^12]: Ibid, at p. 384. [^13]: Robert’s affidavit sworn March 2, 2016, at paras. 4 and 8; Robert’s affidavit sworn December 15, 2017, at paras. 6, 8, 15, and 19. [^14]: Transcript, cross-examination of Vamos, June 28, 2006, at pp. 31-33. [^15]: (1870), L.R. 5 Q.B. 549, at p. 565. See also Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. S.C.); Stekar v. Wilcox, 2017 ONCA 1010, at para. 14. [^16]: Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), at para. 14. [^17]: Ibid, at para. 15. [^18]: Transcript, Examination of Christine, at Q. 49. [^19]: (1998), 164 D.L.R. (4th) 176 (Ont. S.C.). [^20]: Ibid, at para. 62. [^21]: Ibid, at para. 63. [^22]: (1996), 12 E.T.R. (2d) 219 (Ont. Ct. J (Gen. Div.), at para. 33 [emphasis added]. [^23]: Juravinski Records, JMB, at p. 384. [^24]: Clinical note, Dr. Douglas, 2015-09-24, JMB, at p. 103. [^25]: Dr. Cox, October 14, 2015, JMB, at p. 126. [^26]: Ibid, October 19, 2015, JMB, at p. 128. [^27]: An opioid analgesic. [^28]: Clinical notes, Dr. Douglas, 2015-10-23 and 2015-10-26, JMB, at p.131. [^29]: Ibid, at pp. 132-33. [^30]: An opioid analgesic. [^31]: Ibid, at p. 138. [^32]: CCAC Records, JMB, at p. 642. [^33]: Clinical notes, Dr. Douglas, 2015-12-07, JMB, at p. 159. [^34]: CCAC Records, JMB, at p. 665. [^35]: Ibid, at p. 664. [^36]: Ibid, at pp. 769-70. [^37]: Ibid, at pp. 693 and 698. [^38]: Juravinski Records, JMB, at p. 357. [^39]: Ibid, at pp. 370-71. [^40]: Ibid, at p. 386. [^41]: Ibid, at p. 627. [^42]: Ibid, at pp. 431-33. [^43]: Transcript, Christine, at pp. 18-20. [^44]: Ainsworth Memo, final para. [^45]: Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.). [^46]: Robert affidavit, sworn March 2, 2016, at para. 16. [^47]: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 (SCC). [^48]: 2010 ONSC 6836, 71 E.T.R. (3d) 55. [^49]: 2017 ONCA 561, 28 E.T.R. (4th) 1. [^50]: S.O. 1992, c. 30. [^51]: Robertson v. Hayton, [2003] O.T.C. 981 (S.C.), at para.33. [^52]: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795.