CITATION: O’Meara v. Miller, 2021 ONSC 5919

COURT FILE NO.: 01-3003/19 DATE: 2021-09-23

ONTARIO

SUPERIOR COURT OF JUSTICE

(Commercial List)

IN THE ESTATE of CHARLES SEYMOUR STARKEY, deceased

BETWEEN:

HEATHER ANNE O'MEARA AND/OR THE ESTATE OF CHARLES SEYMOUR STARKEY

Applicants

– and –

DIANA MILLER

Respondent

Heather Anne O’Meara, Self-represented Applicant

Emily Evangelista, for the Respondent

HEARD: July 28 – 30, 2021

KOEHNEN J.

REASONS FOR JUDGMENT

Overview

1This application arises out of the estate of Charles Starkey, who died on July 18, 2019 at the age of 85. The applicant, Heather O’Meara, is the daughter of Mr. Starkey. In this application, Ms. O’Meara seeks to change the beneficiary designation on a life insurance policy with a value of $15,000 and seeks payment from the respondent Diana Miller of approximately $30,000, which the applicant says was wrongfully obtained from her father. The applicant also seeks payment of $15,198 in arrears to the retirement home in which Mr. Starkey resided, which Ms. O’Meara argues were a direct result of Ms. Miller’s unconscionable procurement. Underlying the claims are Ms. O’Meara’s allegations that her father lacked capacity when he made the beneficiary designation and when the impugned payments were made to Ms. Miller and that her father was the victim of undue influence and unconscionable procurement by the respondent Diana Miller.

2Ms. O’Meara was self represented. As a result, I extended her considerable flexibility during the course of the hearing. The hearing was devised as a hybrid proceeding with affidavits used largely in lieu of examination in chief. I nevertheless allowed Ms. O’Meara to call witnesses from whom she had not obtained affidavits. In addition, I allowed Ms. O’Meara substantial flexibility in examining her own witnesses in chief and permitted what opposing counsel no doubt believed was an undue number of leading questions. I did this with the aim of ensuring that Ms. O’Meara was able to raise every argument wanted during the course of the hearing.

3In my view, the application should be dismissed. The evidence of a number of witnesses at trial was to the effect that Mr. Starkey was eccentric and scatterbrained but did not lack capacity. Indeed, Ms. O’Meara wrote a 26-page letter to her father in May 2016 in which she raised many of the issues that she raises in this application but in which she also acknowledged that her father had the capacity to do as he wished.

4In addition, the bulk of the monetary claims involve payments that Mr. Starkey made between 2002 and 2009. On Ms. O’Meara’s own evidence, she believed as early as 2002 that her father lacked capacity. Her concerns about his capacity continued throughout the piece. Ms. O’Meara was fully aware of her ability to obtain a capacity assessment of her father but did not do so.

5In these circumstances, I do not think it is appropriate to challenge Mr. Starkey’s capacity or the transactions Ms. O’Meara disputes as long after the fact as she does. There is, in my view, no injustice in holding Ms. O’Meara to the application of the ordinary two-year limitation period. As a result, I would also dismiss the application as barred by the limitations period.

The Facts

6There is little doubt that Mr. Starkey was an eccentric and difficult man. He had no relationship to speak of with his children. When his son Paul was diagnosed with cancer 1987, he rarely visited him and did not pay his share of funeral expenses. He believed the earth was hollow and told Ms. O’Meara that the Catholic Church to which she belonged was the “whore of Babylon.” Witnesses who testified on behalf of Ms. O’Meara described him as weak willed, easily manipulated and someone who tended to follow the advice of the last person he spoke to. That said, those same witnesses also testified that Mr. Starkey had highly unconventional views on a number of matters, such as believing that the earth was hollow, and stuck to those views steadfastly despite scientific evidence to the contrary.

7The transactions on which Ms. O’Meara bases her application began in 2002. At that time, Ms. O’Meara’s other brother, Timothy, was in a romantic relationship with Ms. Miller. He was also in jail. Ms. O’Meara says Mr. Starkey paid $6,000 for phone calls between Timothy and Ms. Miller while Timothy was incarcerated between 2002 and 2005. At the time, Ms. O’Meara was of the view that Mr. Starkey’s payments of the phone bills amounted to financial abuse and that, even in 2002, she saw these payments as evidence that her father was “delusional and/or incompetent.”

8Ms. O’Meara incorporated a Chronology into her affidavit by reference. The Chronology indicates that as early as 2002, Ms. O’Meara had formed the view that Ms. Miller was abusing Mr. Starkey and states:

I used to invite my father to come and have dinner with my family, and during these meals, I began to learn how my brother and Diana Miller were taking advantage of my father.

9Ms. O’Meara communicated her concerns to her father at the time. The Chronology indicates:

My father seemed unable to comprehend that his son and Diana Miller were taking advantage of him financially and he seemed to take the view that refusing to support his son simply wasn’t an option.

10Ms. O’Meara alleges that in 2004, Mr. Starkey had a life-threatening heart attack. At the time she believed (and still does) that he suffered the heart attack because he ran out of money to purchase heart medication due to his financing of the phone calls between Timothy and Ms. Miller.

11The relationship between Ms. Miller and Timothy broke down at the end of 2006 or early 2007. Mr. Starkey continued to maintain a friendship with Ms. Miller after that.

12Ms. O’Meara says that in 2009, her father received a settlement of approximately $13,000. She submits that it was frittered away in a spending spree for Ms. Miller’s benefit. To support the spending spree, she includes bank records from her father showing various debit card expenses and bank transfers.

13In 2010, Mr. Starkey executed powers of attorney for personal care and property as well as a will with the assistance of a lawyer. In connection with the preparation of these documents, Mr. Starkey obtained a letter from his family physician, Dr. Culbert, which attested to Mr. Starkey’s competence to make decisions regarding his financial and personal care stating:

I am currently Mr. Charles Starkey’s Family Physician. It is my medical opinion that he is competent to make decisions regarding his financial and personal care. It is my understanding that he is wanting to change his POA and he has discussed this with me. I believe he is capable to make this decision.

14Mr. Starkey named a personal friend, John Alexander Vrontos as his attorney for personal care and property and as executor of his will. The will left $1.00 to his son Timothy and $500.00 to Ms. O’Meara. The balance of the estate was left to the Watchtower Society, an entity associated with the Jehovah’s Witnesses of which Mr. Starkey was a member.

15Ms. O’Meara does not challenge the will.

16Mr. Vrontos testified at trial. He indicated that, between 2001 and 2011, he spoke to Mr. Starkey approximately three or four times a week. After 2011, their friendship drifted apart because of a new job that Mr. Vrontos took on that required a great deal of time.

17Mr. Vrontos expressed concerns to Mr. Starkey about Ms. Miller. In Mr. Vrontos’s view, Mr. Starkey was very quick to attend to the requests of Ms. Miller such as buying wine or cigarettes. Mr. Vrontos spoke to Mr. Starkey about spending as much money as he did. In Mr. Vrontos’ words, the relationship with Ms. Miller “was a concern” and “was bordering on abuse.” That said, Mr. Vrontos was at all-times satisfied that Mr. Starkey had capacity to handle his finances. Mr. Vrontos understood that he was to exercise the power of attorney if Mr. Starkey became incapacitated. Mr. Vrontos never did so. Mr. Vrontos also testified that if he felt that Mr. Starkey was incapacitated he would have stepped in. Mr. Vrontos described the relationship between Mr. Starkey and Ms. Miller as being similar to that of a child and parent who can never say no. A parent who cannot deny a child’s wishes might be led into unwise expenditures but does not necessarily lack capacity.

18Ms. O’Meara was married to Michael O’Meara until approximately 2014. Mr. O’Meara testified at trial. He described Mr. Starkey as functional but scatterbrained.

19John Starkey is the deceased’s brother. He testified that the deceased needed a woman to direct him, was desperate to have someone tell them what to do and was vulnerable to manipulation. In John Starkey’s opinion, Ms. Miller shamelessly took advantage of the deceased in so many ways that he could not believe that the deceased allowed it to happen. Despite those concerns, John Starkey never raised any issue about the deceased’s capacity while he was alive.

20In 2014, a number of issues arose that could have given rise to a capacity assessment had the various parties been truly concerned about the deceased’s capacity.

21In 2014, Mr. Starkey developed problems with his physical health which made it difficult for him to continue living on his own. He initially moved in with Ms. Miller for a short time. When it became clear that Mr. Starkey could no longer live in Ms. Miller’s home, she brought him to Ms. O’Meara’s home. It quickly became clear that Ms. O’Meara could not accommodate Mr. Starkey. As a result, he became a resident of Alexis Lodge, an assisted living facility.

22As a result of Mr. Starkey’s interactions with Ms. Miller, she became aware that he had left his estate to the Watchtower Society. Ms. Miller was concerned that the Watchtower Society was attempting to take advantage of Mr. Starkey and informed Ms. O’Meara of the contents of the will and recommended that Ms. O’Meara assist Mr. Starkey in making a new will. This prompted initial efforts to have Ms. O’Meara take control of Mr. Starkey’s bank accounts. Mr. Starkey initially seemed amenable but then changed his mind and refused to let that occur.

23The records of Dr. Culbert indicate that, on March 28, 2014, Ms. O’Meara raised concerns about Mr. Starkey’s cognition and ability to care for himself with her. On April 1, 2014, Ms. O’Meara met with Dr. Culbert and raised concerns to the effect that Mr. Starkey was being abused by Ms. Miller.

24Despite these concerns being raised, Dr. Culbert, who saw Mr. Starkey after these exchanges, did not raise concerns about his capacity.

25In 2014, Ms. O’Meara also approached the police and the Public Guardian and Trustee about her father’s capacity. She was told what steps to take to have a capacity assessment undertaken. Ms. O’Meara says she did not initiate a capacity assessment because Ms. Miller would have used it to drive another wedge between herself and her father and would exacerbate what she believed was her father’s paranoia.

26As noted, Mr. Starkey became a resident of Alexis Lodge in September 2014. At the time of his admission, his physician diagnosed him with mild cognitive impairment but indicated that he should be free to come and go at Alexis Lodge as he pleased.

27Alexis Lodge specializes in dementia patients. Mr. Starkey was not, however, diagnosed with any form of dementia and lived independently at Alexis Lodge. Its staff knew that Mr. Starkey was often gone for the entire day. They raised no concerns about capacity until over four years later.

28The next significant milestone in the chronology arose in April 2016. On April 28, 2016 Mr. Starkey left two voicemail messages for Ms. O’Meara. Both were admitted as an exhibit and were played at the hearing. At the end of the messages a female voice can be heard prompting Mr. Starkey what to say, including telling his daughter to “stay out of my business” and “I am very happy with my life.”

29In response to this, Ms. O’Meara called the office of the Public Guardian and Trustee on May 2, 2016 to report that Mr. Starkey was being financially abused by Ms. Miller. Ms. O’Meara was again advised about the steps needed to conduct an assessment. Ms. O’Meara’s understanding was that an assessment would cost approximately $350 and, if Mr. Starkey did not agree to the assessment, she would have to obtain a court order to have one performed.

30In May 2016, Ms. O’Meara wrote a 26-page, single spaced letter to her father stating among other things:

(a) She did not see any evidence that Mr. Starkey was not “perfectly capable of continuing to be responsible for [his] own decisions” and she was “not aware of any person having any intention to challenge his ability to make his own decisions.”

(b) His ability to prevent his eviction from Alexis Lodge indicated that he was still capable of managing his financial affairs, and if he was paying his expenses, it was nobody’s business how he spent his disposable income.

(c) He valued his friendship with Ms. Miller and Ms. O’Meara assumed that each benefitted from the relationship in different ways.

(d) She did not want to put his valued friendship with Ms. Miller at risk because she knew it was important to his well-being.

31No one at Alexis Lodge expressed concerns about Mr. Starkey’s capacity until January 2019 when, as a result of a number of events including the accumulation of over $15,000 of rental arrears, they initiated a capacity assessment which declared Mr. Starkey to be incapable of managing his own affairs.

32As noted, Mr. Starkey died on July 18, 2019. The application was commenced on August 16, 2019 and was amended to add Ms. Miller as a party on September 23, 2019.

Analysis

(a) Beneficiary Designation

33Ms. O’Meara’s first claim is to set aside a beneficiary designation under a life insurance policy. The policy has a value of $15,000. The sum of $12,500 has been paid into court by the insurer. The remaining $2,500 is claimed by the insurer for legal costs to address this issue. Ms. O’Meara seeks payment of the monies paid into court plus an additional $2,500 from Ms. Miller to compensate for the reduction in the value of the policy as a result of the insurer’s legal costs.

34Three beneficiary designations were introduced as Exhibit 3 at the hearing. The first was made on June 11, 2008 and identified Ms. Miller as the beneficiary.

35This designation was made when Mr. Vrontos was in close contact with Mr. Starkey and when Mr. Vrontos believed that Mr. Starkey had capacity.

36It also preceded the date on which Dr. Culbert provided a favourable capacity opinion of Mr. Starkey in 2010. I note that beneficiary designations are deemed to be testamentary dispositions and are therefore subject to the test for testamentary capacity. Dr. Culbert’s opinion, strictly speaking, relates to capacity to manage financial affairs and personal care because it was, on its face, given in relation to a change in a power of attorney which attracts a somewhat different capacity test than do testamentary dispositions. That said, it provides further evidence of at least some degree of capacity as of 2010.

37I also appreciate that Dr. Culbert’s letter relates to capacity as of the date of her letter, namely April 26, 2010. It is possible that Mr. Starkey’s capacity differed when he made the designation on June 11, 2008. There is, however, no evidence before me to that effect. Indeed, the evidence from Mr. Vrontos is to the contrary.

38The beneficiary designation was changed on March 17, 2014 in favour of Ms. O’Meara and was changed back to Ms. Miller on September 14, 2016. The change in beneficiaries to Ms. O’Meara in March 2014 causes some difficulty for Ms. O’Meara’s case. If, as Ms. O’Meara requests, I find in her favour and assume that Mr. Starkey was incapacitated at that time or earlier, then the beneficiary designation in Ms. O’Meara’s favour should fail and the earlier beneficiary designation in favour of Ms. Miller would prevail.

39Given the absence of evidence of incapacity at the time of any of the designations, I dismiss Ms. O’Meara’s claim to change the beneficiary designation. My views on undue influence and unconscionable procurement set out later in these reasons also preclude setting aside the beneficiary designation on those grounds.

(b) Cash Transfers and Expenses

40I note that the bulk of Ms. O’Meara’s claims relate to expenditures that were made before 2010. In other words, they preceded Dr. Culbert’s capacity opinion.

41Although Dr. Culbert’s letter might not meet the gold standard of capacity assessments in that it does not articulate the test for capacity and does not proceed through the standard questions or tests for capacity, it is the opinion of a medical doctor who would have some experience with the concept of capacity. In addition, it is confirmed by the evidence of Mr. Vrontos, Mr. O’Meara and Ms. O’Meara’s May 2016 letter.

42The evidence before me does not establish any lack of capacity before January 2019. As a result, I dismiss Ms. O’Meara’s claims for monetary relief based on lack of capacity.

(c) Alexis Lodge Arrears

43By the time of his death, Mr. Starkey had accumulated arrears at Alexis Lodge in excess of $15,000.

44Alexis Lodge contacted Ms. O’Meara about the arrears in September 2016. She indicated that she would look into it but then made no further contact with Alexis Lodge.¹

45It is clear from the letter she wrote in May 2016 that she was concerned about the failure to pay debts as being associated with issues of capacity of which she now complains. Indeed, she was concerned since her father’s heart attack in 2004 that he was ignoring more important expenses because of payments he was making to Ms. Miller. However, she took no action to ensure that the arrears were brought up to date or that a capacity assessment was conducted on her father at that time. In addition, Mr. Starkey had a long history of failing to pay debts to the point that, in her letter of May 2016, Ms. O’Meara told him that the ability to pay one’s debts is entirely separate from the willingness to pay and that Mr. Starkey had the “right to choose which debts to pay.” Added to that, the evidence before me shows that Mr. Starkey was unhappy with the care he was receiving at Alexis Lodge. One might expect that someone who was unhappy with the services being delivered might not pay the bill in relation to those services, especially if the person had a history of failing to pay debts.

46I do not make these comments to in any way criticize the care that Alexis Lodge was providing or to justify Mr. Starkey’s conduct. I make the statement only because individuals are free to fail to pay their debts. The simple fact that someone fails to pay an obligation does not mean they lack capacity. There were steps available both to Alexis Lodge and to Ms. O’Meara to address the failure to pay debts. Neither took any steps until 2019, when Alexis Lodge had Mr. Starkey declared incapable of managing his financial affairs.

(c) Undue Influence

47The concept of undue influence is related to, but separate from, capacity. The doctrine is used to set aside certain inter vivos gifts where they were brought about through the exertion of influence on the mind of the donor so as to make the donor’s mind fall short of being independent. One can, however, have capacity but still be subject to undue influence.

48In Geffen v. Goodman Estate² the Supreme Court of Canada noted that the doctrine arises in two circumstances. The first arises in situations where there has been unfair conduct of the sort that is improper, overreaching or that amounts to some form of cheating. The second consists of cases where the relationship between the donor and donee is such that it should give rise to a presumption of undue influence.³

49Although the Court recognizes that certain types of relationships – for example, those between a fiduciary and beneficiary or a solicitor and client – are almost de facto presumed to be subject to undue influence, the category of relationships is not closed and depends on the facts of each case.

50In cases where the undue influence arises out of the relationship, to use the language of Justice Wilson in Goodman Estate:

[T]he process leading up to the gifting should be subject to judicial scrutiny because there is something so completely repugnant about the judicial enforcement of coerced or fraudulently induced generosity.⁴

51In Goodman Estate, Wilson J. described undue influence as follows:

It seems to me rather that when one speaks of "influence" one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. … To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well. The point is that there is nothing per se reprehensible about persons in a relationship of trust or confidence exerting influence, even undue influence, over their beneficiaries. It depends on their motivation and the objective they seek to achieve thereby.⁵

52To establish a presumption of undue influence the court should examine the relationship between the parties. The first question is whether the potential for domination inheres in the nature of the relationship itself.⁶ The next step is to examine the nature of the transaction.⁷ Where the transaction involves a gift as opposed to a commercial transaction, it is enough to establish the presence of a dominant relationship.⁸

53Once the plaintiff has established that the potential for influence exists, the onus shifts to the defendant. To rebut the presumption the evidence must demonstrate that the transaction was entered into as a result of the donor’s “full, free and informed thought.”⁹ Evidence demonstrating this may include facts showing that no actual influence was deployed in a particular transaction, or that the plaintiff had independent advice.

54I turn, then, to the application of these principles to the evidence before me.

55Ms. O’Meara did not argue that the gifts in question fall into one category or another. I will therefore assess the evidence in light of both categories of undue influence.

56First is the category of undue influence arising out of unfair conduct. To begin with, it is important to note, as the Supreme Court of Canada did in Goodman Estate, that the doctrine was designed not to save people from the consequences of their own folly, but to prevent them from being victimized by others.¹⁰ This underscores an important distinction between allowing people to make foolish but freely made decisions on the one hand, and preventing them from being victimized on the other.

57There is no evidence before me to suggest that Ms. Miller’s conduct with Mr. Starkey was improper, overreaching or amounted to some form of cheating. Part of the challenge here is that the allegations involve a series of individual transactions, each for relatively modest amounts, that occurred largely between 2000 to 2009. As a practical matter, it is extremely difficult in 2021 to review each of those individual transactions to determine whether they involved conduct that was improper, overreaching or could be categorized as cheating.

58It is noteworthy to me that the payments Mr. Starkey is alleged to have made to Ms. Miller involved periodic relatively small individual amounts. They also dropped off dramatically after 2010. That appears to be inconsistent with someone whose motivation and objective is to abuse Mr. Starkey.

59I turn, then, to the second category of undue influence, that based on the nature of the relationship. The evidence of the relationship between Mr. Starkey and Ms. Miller was that they were good friends although perhaps in an unconventional relationship. Ms. Miller’s sons testified that they viewed Mr. Starkey as a close family friend. Mr. Starkey often came to Ms. Miller’s home for dinner, ran errands for her and did various repairs around the house. Mr. Starkey spent holidays at the Miller household and spent time with Ms. Miller and her sons on their birthdays. Ms. Miller’s two sons testified that they often saw their mother giving Mr. Starkey cash either before Mr. Starkey went shopping for her or afterwards. In addition, Ms. Miller helped Mr. Starkey arrange medical appointments and purchased a variety of things for him, including clothing, a parka, a bicycle and adult incontinence products. Ms. Miller’s son, Lee Shankman, made cash payments to Mr. Starkey for helping him deliver flyers. It was a family-like relationship.

60I am reluctant to describe generosity within the context of that sort of relationship as being repugnant, coerced or fraudulently induced (to use the language of Goodman Estate).

61Mr. Starkey changed the beneficiary designation in his insurance policy from Ms. Miller to Ms. O’Meara in 2014. This suggests that, at least at that time, he was not being subject to undue influence by Ms. Miller. Although Mr. Starkey changed the beneficiary designation back to Ms. Miller in 2016, there is no evidence to suggest that there were any other material transactions leading up to 2016 or thereafter which suggest that Ms. Miller was somehow exploiting Mr. Starkey.

62Mr. Vrontos, Ms. O’Meara and Mr. Starkey’s brother made comments to him to the effect that he should not be spending as much money as he did on Ms. Miller. Mr. Starkey clearly had others in his life who gave him advice that was contrary to what he was doing yet he chose to continue to do as he pleased while the people who objected to his expenditures agreed that he had capacity.

63I can see that this could be seen as further evidence of the power of Ms. Miller’s undue influence. It could equally be seen as the product of Mr. Starkey’s generosity in a family-like relationship. The generosity that a parent might show to his family members was otherwise absent in Mr. Starkey’s life because he had no meaningful relationship with Timothy or Ms. O’Meara. The relationship with Ms. Miller and her family appears to have been a substitute family relationship.

64As the Supreme Court of Canada noted in an earlier decision, a relationship of deep affection and high regard between people is not necessarily one that should lead to an inference of undue influence. On the contrary, the affection and regard can provide a good reason for the generosity and provides an explanation for the gifts.¹¹

65If this had been a situation of undue influence, one might have expected the alleged transfers to Ms. O’Meara to increase as Mr. Starkey became older and after he had moved into an assisted living facility. However, that was not the case here. The evidence before me indicates that payments to Ms. Miller largely stopped after 2010.

66Moreover, to the extent that the relationship between Ms. Miller and Mr. Starkey is one in which undue influence is presumed to exist (which I find not to be the case), I am satisfied that the evidence before me, when viewed as a whole, rebuts that presumption.

(d) Unconscionable Procurement

67The doctrine of unconscionable procurement was recently explored by Kimmel J. in Gefen v. Gaertner¹² where Her Honour summarized the following principles about its application:

(a) It renders a transaction voidable and does not require proof of incapacity or undue influence.¹³

(b) It requires a significant benefit to be bestowed on the donee and the active involvement of the donee in obtaining the benefit.¹⁴

(c) The burden of proof is on the party attacking the transaction.¹⁵

(d) Once the elements in sub paragraph (b) above are established, a presumption arises that the donor did not understand what he or she was doing in entering the transaction.¹⁶

(e) The court should then review the impugned transaction “with its moral sense awakened and with a view to determining whether it would be unconscionable to allow the transaction to stand.”¹⁷ The donor must have “appreciated the effect, nature and consequence of the transaction in a manner sufficient to render it fair just and reasonable.”¹⁸

(f) A gift can be validly made in the sense that the donor has capacity but still be unconscionable.¹⁹

68I turn, then, to the application of those principles.

69The first requirement is that the gift involve a significant benefit to the donee. In my view, the transactions alleged here do not meet that standard. Ms. O’Meara points to a lengthy series of relatively small transactions over a period of approximately 10 years which she asserts are transactions in favour of Ms. Miller. The largest were two transactions of $3,000: one in 2007 and one in 2009. The next largest were two transactions of $1,000: one in September 2008 and another in September 2009. The rest range in size between $100 and $900.

70There is also no evidence of active involvement of Ms. Miller in obtaining the benefit –something which must also be shown in relation to the first requirement. That said, I do not put any weight on that point because Ms. Miller filed no evidence herself.²⁰

71If I am wrong in these findings and there was substantial benefit which was actively procured, then the presumption that Mr. Starkey did not understand what he was doing in entering the transactions applies. In that circumstance I am required to review the transactions with my moral sense awakened to determine whether it would be unconscionable to allow the transactions to stand.

72Given the evidence referred to in paragraph 59 above to the effect that Mr. Starkey was treated like a member of the Miller family and that benefits were bestowed mutually between Mr. Starkey and the Millers, I do not find it unconscionable for the transactions to stand.

73While the transactions were at sometimes largish for a man of Mr. Starkey’s means, I am not prepared to find on the evidence of the overall relationship between Mr. Starkey and the Miller’s that they were unconscionable.

(g) Limitations Period

74In addition to the foregoing analysis, (and if I am incorrect in the analysis about capacity, undue influence, or unconscionable procurement) I also find that Ms. O’Meara’s claims are barred by the basic two year limitation period established by s. 4 of the Limitations Act, 2002.²¹

75The application was commenced on August 16, 2019. But for two years of phone bills of $87 per month, all of the impugned transactions were completed more than two years before the application was brought.

76Ms. O’Meara claims $6,000 for the cost of the Bell telephone charges for prison phone calls for which her father paid between 2002-2005.

77The primary monetary claim that Ms. O’Meara asserts is for $17,164. It is summarized at exhibit H to her affidavit which sets out a series of payments totaling $15,644.81. Of that amount, 22 of the payments arose between November 7, 2001 and October 13, 2009 and total $15,444.81. One further payment of $200 arose on May 10, 2016. Ms. O’Meara adds to that two additional transfers which she infers were made to Ms. Miller on October 20, 2009 for $1,000 and on October 28, 2009 for $500.

78Ms. O’Meara claims a further payment of $7,569 which reflects payments of $87 a month for a phone belonging to Ms. Miller that was being billed as part of a joint plan for Ms. Miller and Mr. Starkey’s phone. Those payments began in 2012 and appear to have extended to June 2019 when Ms. O’Meara and/or the Public Guardian and Trustee changed the plan.

79Ms. O’Meara claims $2,000 in LCBO purchases “in excess of what could be considered reasonable.” Those claims are set out at exhibit Q of Ms. O’Meara’s affidavit. Exhibit Q consists of a series of tables with argument that Ms. O’Meara prepared based on extracts from Mr. Starkey’s bank statements. In cross-examination, Ms. O’Meara admitted that she had no first-hand knowledge of whether the payments were for Ms. Miller.

80In Part IV of her factum at paragraph 8, Ms. O’Meara claims:

$7,206 for part of the unconscionable procurement of cash, goods and services prior to 2014, specifically that which occurred in September and October 2009 which prevented repayment of a high interest loan.

81Ms. O’Meara claims $15,198 for arrears owed by the estate to Alexis Lodge. She submits that her father’s failure to pay that amount was attributable to the unconscionable procurement of Ms. Miller. As noted, Ms. O’Meara knew of arrears in 2016.

82Ms. O’Meara’s own evidence demonstrates that the concerns about Mr. Starkey’s lack of capacity and the alleged financial abuse to which he was subject was not only discoverable, but was known to Ms. O’Meara more than two years before she brought the application.

83On her own evidence, she believed as early as 2002, and certainly by 2005, that her father was delusional and incompetent and was being abused by Timothy and Ms. Miller. On her own evidence, Ms. O’Meara continually became aware of new facts that strengthened her views throughout the piece yet she took no steps in response until after her father’s death in 2019.

84Although Ms. O’Meara may not have been aware of every detail of the alleged abuse by Ms. Miller before her father’s death, she clearly was aware of enough to have been alive to the issue and could have taken steps to try to prevent what she believed was abuse. That is sufficient to start the running of a limitations period:

Once the plaintiff knows that some damage has occurred and has identified the tortfeasor, the cause of action has accrued. Neither the extent of the damage nor the type of the damage need be known. The discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed; the limitation period runs from when the prospective plaintiff has or ought to have had knowledge of a potential claim, and the later discovery of facts which change a borderline claim into a viable one does not postpone the discovery of the claim.²²

85In applying the limitations period, I am not doing so to protect Ms. Miller but to protect Mr. Starkey and the principle of individual autonomy. Even if I assume that Mr. Starkey was eccentric, disagreeable, irresponsible, and foolish, the law allows people the freedom to be all of those things if they have capacity. Individuals have the right to make personal choices about their affairs and have those choices respected.

86If Ms. O’Meara or others believed that the choices were the product of a lack of capacity, undue influence, or unconscionable procurement, they had an easy way of addressing those concerns. By way of example, an assessment could have let Mr. Starkey speak for himself and would have allowed a capacity assessor or a judge, if necessary, determine if Mr. Starkey should be deprived of the freedom to make his own choices. On the facts of this case, I am extremely reluctant to make that determination at a time when Mr. Starkey can no longer speak for himself. I underscore that the circumstances before me are very different from a challenge to a will which often does involve an after the fact challenge to a deceased’s testamentary capacity. Those challenges, however, involve situations where the applicant was not aware of the terms of the will until after death and where the process of drafting a will can involve steps to avoid challenges by obtaining capacity assessments or questions to test for undue influence that allow testators to speak for themselves.

87There is a further feature of this case that makes me reluctant to second guess Mr. Starkey’s freedom of choice so long after the issues were known to the applicant. Had Ms. O’Meara obtained a capacity assessment or claimed undue influence or unconscionable procurement before her father’s death, she would not have obtained any benefit had she succeeded in her assertions. At best, it would have meant that monies that were paid to Ms. Miller or others would have remained in Mr. Starkey’s estate and would, apart from the first $501, have been distributed to the Watchtower Society. Since then, Ms. O’Meara has advised Mr. Vrontos and the Watchtower Society that the estate has no assets, after which the Watchtower Society renounced any interest in the estate and Mr. Vrontos declined to become executor. Ms. O’Meara then applied to be, and was, appointed as Estate Trustee. Given the Watchtower Society’s renunciation of any interest in the estate, any award arising out of the claim would now redound, at least in part, to Ms. O’Meara’s benefit.

88Ms. O’Meara submits that she should not be held to a limitation period because she was suffering from depression to a degree that it prevented her from seeking a capacity assessment because she was struggling to gain a CPP benefit for the depression.

89It appears that the depression arose in 2014. There is no explanation for not having sought a capacity assessment before 2014 when she was aware of the same concerns that she raises now. There is no medical evidence before me about the state of the depression and the degree to which it prevented Ms. O’Meara from taking steps to initiate a capacity assessment. I note that Ms. O’Meara was well enough to act on her own behalf in pursuing a pension benefit for the depression all the way to a tribunal hearing which was resolved in her favour in 2015. By 2016 she was well enough to write a 26-page letter to her father that addressed the history of their relationship and Mr. Starkey’s capacity. She was also well enough to raise questions about capacity with the Public Guardian and Trustee and with the police.

90On that record, there is not sufficient evidence before me to excuse Ms. O’Meara from the application of the limitations period.

(h) Adverse Inference

91Ms. O’Meara notes that Ms. Miller did not file an affidavit in these proceedings and that I should draw an adverse inference against her because of that.

92Ms. Miller’s counsel points out that she provided a letter from Ms. Miller’s physician, setting out medical grounds for why Ms. Miller should not be subject to cross-examination.

93I am not prepared to rely on that letter. It was provided to me in confidence and was not shared with Ms. O’Meara. As Ms. O’Meara points out, Ms. Miller could have sworn an affidavit in the proceedings and sought leave not to be cross-examined by Ms. O’Meara or to have the court ask questions of Ms. Miller in an unthreatening manner.

94Moreover, the terms of the letter cause me concern. It indicates that Ms. Miller joined the physician’s family practice in April 2021 and that on review of her previous medical history, the physician learned that Ms. Miller was diagnosed with a medical condition in 2008 of the sort that could cause serious side effects if she were subjected to psychological stress such as cross-examination in a legal setting. The physician scheduled an appointment with a specialist for late June 2021 to obtain an update on the nature and management of the condition. On the record before me, Ms. Miller seems to have been managing acceptably with the condition since 2008. I did not receive any update about the outcome of the appointment that was scheduled for late June 2021 even though the hearing did not occur until July 28. In those circumstances, I put no weight on Ms. Miller’s medical letter.

95That said, an adverse inference should be drawn only after a prima facie case has been established by the party bearing the burden.²³ Given Ms. O’Meara’s statement to the effect that Mr. Starkey had capacity in her May 2016 letter, the evidence of Mr. Vrontos and the capacity letter of Dr. Culbert from 2010 all to the same effect, Ms. O’Meara’s failure to obtain a capacity assessment despite her concerns since 2002, and the limitations issue, she has not, in my view, demonstrated a prima facie case.

Costs

96The respondent seeks costs on a substantial indemnity scale which she asked me to fix at $47,703.12 including HST and disbursements. In the alternative, the respondent asks me to fix costs on a partial indemnity scale at $39,476.80. The applicant, if successful, asked me to fix costs in her favourite $23,627.50 even though she was self represented.

97In October 2020, the respondent offer to settle the action by allowing Ms. O’Meara to receive the proceeds of the insurance policy which had been paid into court. The respondent extended a further offer to settle in March 2021 by offering to have Ms. O’Meara paid $8,500 from the proceeds of the life insurance policy that have been paid into court and to have the remaining $4,000 paid to the estate of Mr. Starkey. If the offer was not accepted by April 1, 2021, the payment to Ms. O’Meara automatically reduced by $1,500 per month and the payment to the estate automatically reduced by $1,000 per month. While those features of the settlement offer a take it outside of the default position of awarding substantial indemnity costs from the date of settlement offer forward, they nevertheless indicate a bona fide intention to settle.

98I award the respondent her costs on a partial indemnity scale which I fix at $39,476.80 as requested.

99This was a proceeding that was made more and more complex as it went along. It began as an application concerning the beneficiary designation under the life insurance policy. It grew in scope as time went on to include ever larger claims against the respondent. The expansion went on up to and including delivery of the applicant’s factum. All of this added to the respondent’s costs. The application required several case conferences. The merits hearing went on for three days. The applicant made a point of sending an email to Ms. Miller which made clear to her that the applicant was self represented, does not have a day job and is therefore free to spend as much time as she pleases tracking down evidence, preparing statements of claim and preparing further motions and applications. In the email Ms. O’Meara noted that she is not burdened with paying a lawyer for costs or even paying costs of filing documents as a result of a fee waiver certificate.

100The limitations issue alone disposes of all of the claims except the beneficiary designation. Ms. O’Meara should have been aware of that from the outset. Ms. O’Meara was warned during the course of one of the case conferences that she was making this matter far more complex that it needed to be and that she would be exposed to costs if she failed in the application. In those circumstances, I see no unfairness in holding Ms. O’Meara liable for partial indemnity costs of the successful party.

101Ms. O’Meara submits that she is a self represented party and should therefore be given some leeway. I have awarded costs against her on a partial indemnity scale. That reflects both the fact that the beneficiary designation was not caught by the limitations period and the leeway she seeks as a result of being a self represented party.

CITATION: O’Meara v. Miller, 2021 ONSC 5919

COURT FILE NO.: 01-3003/19 DATE: 2021-09-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HEATHER ANNE O'MEARA AND/OR THE ESTATE OF CHARLES SEYMOUR STARKEY

Applicants

– and –

DIANA MILLER

Respondent

REASONS FOR JUDGMENT

Koehnen J.

Footnotes

1. 1This information comes from the capacity assessment that was conducted in 2019. I appreciate that the capacity assessment could be considered hearsay (although it may also fall into the public records, medical records or business records exception). The point I take from it is that if the statements about arrears and notification of Ms. O’Meara in September 2016 are correct, that would have provided both Ms. O’Meara and Alexis Lodge with a further basis to demand a capacity assessment at that time. Neither took steps to obtain an assessment in 2016. Ms. O’Meara does not deny being advised of the rental arrears in September 2016 even though the issue was raised at the hearing.
2. 2[1991] 2 S.C.R. 353.
3. 3Goodman Estate, at pp. 369-370.
4. 4Goodman Estate, at p. 376.
5. 5Goodman Estate, at p. 377.
6. 6Goodman Estate, at p. 378.
7. 7Goodman Estate, at p. 378.
8. 8Goodman Estate, at p. 378.
9. 9Goodman Estate, at p. 379, citing Zamet v. Hyman, [1961] All E.R. 933 (C.A.), at p. 938, per Evershed M.R.
10. 10Goodman Estate, at p. 368.
11. 11Bradley v. Crittenden, [1932] S.C.R. 552, at p. 556.
12. 12Gefen v. Gaertner, 2019 ONSC 6015.
13. 13Gefen, at paras. 158-159.
14. 14Gefen, at para. 159.
15. 15Gefen, at para. 159.
16. 16Gefen, at para. 159.
17. 17Gefen, at para. 159.
18. 18Gefen, at para. 162.
19. 19Gefen, at para. 163.
20. 20See the discussion below in paras. 91-95 about the potential adverse inference to which this could give rise.
21. 21S.O. 2002, c. 24, Sched. B.
22. 22Graeme Mew, The Law of Limitations, 3rd ed. (Toronto: LexisNexis Canada, 2016), at ¶3.56.
23. 23Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Toronto: LexisNexis Canada, 2014), at ¶6.451, citing Dwyer v. Mark II Innovations Ltd. (2006), 208 O.A.C. 305 (C.A.); McIlvenna v. Viebig, 2012 BCSC 218, at paras. 70-71, aff’d 2013 BCCA 411.