Court File and Parties

COURT FILE NO.: CV-22-85

DATE: 2022/05/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTINE CROWLEY, Applicant

AND:

BONNIE JARVIS, CAROL FAUBERT, WAYNE COOPER and JOAN KRANTZ, Respondents

BEFORE: Justice I.F. Leach

COUNSEL: M. Paul Morrissey, for the Applicant Bradley Philips, for the Respondent Joan Krantz Mavis Butkus, for D’Arcy Bell, an interested party No other parties participating

HEARD: May 25, 2022

ENDORSEMENT

[1] Before me, in writing, is a request for an Order for Directions in relation to this estate litigation.

[2] The request is said to be on consent, and is supported by a written Consent signed by counsel for the applicant, counsel for the respondent Ms Krantz, and counsel for Mr D’Arcy Bell, who is an interested party for reasons outlined below.

[3] I have not signed the presented draft order because, in my view, the material filed to date –- at least that contained within the relevant One Drive folder for this matter -- raises concerns about the participation of parties, and why and whether all of the particular relief now being requested is necessary and/or appropriate.

Further background

[4] By way of further background and context, based on the material available to me via the relevant One Drive folder:

a. This litigation concerns the estate and testamentary arrangements of Leonora Cooper, (“the deceased”), who died on April 29, 2021. She was predeceased by her husband, who died in 1992, and by her oldest child, Robert Cooper, who died just nine days before her. She was survived by her other four adult children; i.e., Bonnie Jarvis, Christine Crowley, Carol Faubert and Wayne Cooper.

b. In 2009, the deceased apparently executed power of attorney documents and a will prepared by her then long-term lawyer; i.e., Mr D’Arcy Bell.

c. The deceased is said to have been formally diagnosed, (e.g., by a mental capacity assessment performed while the deceased was a patient at the Bluewater Hospital in Sarnia), with “modest to severe” dementia in 2014. It seems the deceased nevertheless continued to live in the community for a number of years, with assistance from her children and homecare assistance from the Victorian Order of Nurses, while waiting for placement in a long-term care facility in Lambton County.

d. In August of 2016, the deceased apparently was invited to visit her son Wayne Cooper at his home near Goderich, in Huron County. It is said that approximately one week into that “visit”, Wayne Cooper indicated to his siblings that his mother would be staying with him permanently; an indication which apparently made no sense to the other siblings, (given what they understood to be a “tumultuous history” between the deceased and her son Wayne), and caused the other siblings significant concern given their mother’s dementia and what they perceived to be repeated instances, (set forth in the application material), of their brother Wayne taking financial advantage of the deceased at numerous times over the course of many years.

e. Shortly after her relocation to Wayne Cooper’s residence, (i.e., on August 31, 2016), the deceased executed new power of attorney documentation and another will prepared by another lawyer; i.e., Ms Joan Krantz.

f. Over the remaining years before the deceased’s death, there were disputes and disagreements between the siblings about proper care and residence/placement arrangements for the deceased. Those disputes, (in respect of which a number of the siblings retained legal representation), included allegations of further financial improprieties by Wayne Cooper in relation to his mother’s assets, formal litigation concerning the validity of the power of attorney documentation executed by the deceased in 2016, formal mediation, alleged failure by Wayne Cooper to abide by a resulting negotiated settlement or partial settlement, and a formal judgment obtained in January of 2018 appointing Robert Cooper, Bonnie Jarvis and Christine Crowley as guardians of their mother’s property and personal care. After that appointment, the deceased was returned to Sarnia, where she took up residence in a long-term care home that would serve as her residence for the remainder of her life.

g. Before the deceased’s death, her son Wayne Cooper was formally charged with theft and fraud committed vis-à-vis his mother, through abuse of his ostensible powers of attorney. In the course of those criminal proceedings, he was ordered to make restitution to the deceased in the amount of $15,000.00.

h. After the deceased’s death, Ms Krantz apparently circulated correspondence confirming the deceased’s execution of the 2016 will signed by the deceased, which named Ms Krantz and Wayne Cooper as its executors. In response, Christine Crowley had her counsel send a written response to Ms Krantz, indicating that Ms Crowley intended to object to a Certificate of Appointment being granted in relation to the 2016 will.

i. Ms Krantz thereafter renounced her right to apply for such a certificate, and it seems that Wayne Cooper has not taken any steps to be formally appointed as an estate trustee in relation to his mother’s estate.

j. The estate litigation herein was commenced by way of an application brought by Christine Crowley on or about January 11, 2022, naming her surviving siblings and Ms Krantz as respondents. The relevant notice of application, (which indicated that the application was initially returnable on February 18, 2022, and was supported by an affidavit sworn by Ms Crowley on January 7, 2022), sought formal relief that included the following:

i. a declaration that the purported will executed by the deceased on August 31, 2016, is “invalid” and “of no effect”;

ii. an order for directions;

iii. various orders authorizing release of medical, care, legal and financial records relating to the deceased and preparation of legal documents on her behalf, as well as waiver of any associated solicitor-client privilege in that regard;

iv. an order for directions concerning management of the estate pending disposition of the application;

v. an order granting leave to examine any former solicitor of the deceased, with a corresponding waiver of solicitor-client privilege;

vi. an order directing a Rule 75.1 mediation; and

vii. an order validating or dispensing with service of the application.

k. What has happened thereafter, in relation to the litigation and possible formal discussion between the parties or their lawyers, can only be reconstructed and inferred from the remaining material posted to the relevant One Drive folder, as no supplementary affidavit has been filed in that regard. However, based on my review of those One Drive filings:

i. With the assistance of her counsel, the applicant Ms Crowley formally amended the notice of application herein on January 24, 2022, and thereafter took steps to serve the application on the respondents.

ii. On February 14, 2022, a formal Notice of Appearance was delivered by counsel for Ms Krantz.

iii. Following service of the application material on all named respondents other than Wayne Cooper, the counsel for the applicant brought a motion, returnable on March 10, 2022, for an order validating the efforts that had been made to serve the application on Mr Cooper and/or for an order permitting substitute service by such means. That motion resulted in an order made by Justice Gorman, on March 10, 2022, granting that requested relief.

iv. Based on my review of the One Drive folder for this matter, the motion described in the previous sub-paragraph seems to be the only motion that has been prepared and brought in relation to this proceeding. In the circumstances, that inherently means that the matter is now before me not through the vehicle of any motion brought in relation to the underlying application, but through return of the underlying application itself, including that application’s request -- made in sub-paragraph 1(b) of the relevant notice of application’s prayer for relief -- for an “Order for Directions pursuant to Rule 75.06 of the Rules of Civil Procedure”. That inference is confirmed by a review of the many successive “confirmation of application” forms filed in relation to this matter, which successively adjourned the underlying application from its stated initial return date of February 18, 2022, to March 25, 2022; from March 25, 2022, to April 22, 2022; and from April 22, 2022, to May 13, 2022, at which time the matter was “to be spoken to”.

v. It seems that, before or when the matter was spoken to on May 13, 2022, the court registrar received an indication that the matter would be proceeding on consent; an indication supported by the filing of a formal written Consent to the making of an attached draft Order for Directions. That Consent was executed only on behalf of the applicant, the respondent Ms Kratz, (the only respondent to have delivered a notice of appearance), and Mr Bell, who was/is an interested party because the relevant draft Order for Direction contains provisions authorizing/directing waiver of solicitor-client privilege, production of lawyer records and examination of the deceased’s lawyers; i.e., Ms Kratz and Mr Bell. At that point, the application and request for an order on consent was diverted, according to the standard court practice in London, to the process for addressing uncontested motions and applications in writing, in chambers, so as to avoid the unnecessary consumption of oral hearing time by uncontested matters.

vi. As noted above, the matter now has come before me in writing without the filing of any further application material; e.g., a supplementary affidavit setting forth and explaining any developments since the filing of the original application, or explaining in express fashion why the submitted Consent to the making of an attached Order for Directions has been executed only on behalf of the applicant and the two lawyers who prepared powers of attorney and wills for the deceased.

vii. The substantive provisions of that attached draft Order for Directions take up approximately seven pages, and I accordingly will not reiterate all those provisions exhaustively here. Suffice it to say that they include provisions which would:

1. formally dismiss the application vis-à-vis Ms Krantz on a without costs basis, and amend the style of cause herein to remove Ms Krantz as a named respondent;

2. identify the parties to this proceeding going forward as Wayne Cooper, Christine Cowley, Carol Faubert and Bonnie Jarvis;

3. confirm the issues for determination by the proceeding and the positions taken by the above parties in relation to those issues as follows:

a. whether the deceased had testamentary capacity to provide instructions for and execute the relevant 2016 will, with Wayne Cooper affirming that she did, Christine Crowley and Carol Faubert denying that she did, and Bonnie Jarvis effectively taking no position in that regard insofar as she takes no position regarding validity of the 2016 will;

b. whether the deceased knew and approved of the contents of that 2016 will, with Wayne Cooper affirming that she did, Christine Crowley and Carol Faubert denying that she did, and Bonnie Jarvis effectively taking no position in that regard insofar as she takes no position regarding validity of the 2016 will;

c. whether the making of the 2016 will was procured by undue influence, with Christine Crowley and Carol Faubert affirming that it was, Wayne Cooper denying that it was, and Bonnie Jarvis effectively taking no position in that regard insofar as she takes no position regarding validity of the 2016 will; and

d. whether the 2016 will was made under suspicious circumstances, with Christine Crowley and Carol Faubert affirming that it was, Wayne Cooper denying that it was, and Bonnie Jarvis effectively taking no position in that regard insofar as she takes no position regarding validity of the 2016 will;

4. formally restrain all the parties, (identified above), but Wayne Cooper in particular, from dissipating, encumbering or otherwise dealing with any assets of the deceased or former/traceable assets of the deceased without the consent of all parties – with further provisions stipulating the manner in which estate assets shall be invested in the absence of such consent;

5. formally convert this matter to an action, with additional directions for the service of a statement of claim by the applicant as plaintiff and statements of defence by the remaining respondents as defendants, preparation and service of affidavits of documents, documentary production and sharing, and the conduct of discovery examinations in accordance with the Rules of Civil Procedure;

6. compel the production of solicitor records and client files from Mr Bell and Ms Krantz, in relation to the legal services rendered by them to the deceased, and direct the waiver of any solicitor-client privilege or privacy concerns in that regard;

7. grant leave for the examination of those former solicitors of the deceased orally or in writing, with respect to the deceased’s estate planning, with provision for payment of those lawyers, (up to a specified limit), for their time spent in preparing for and attending such examinations;

8. compel the production of financial records relating to the deceased’s assets and accounts “from any parties who are in possession of the same”, as well as a sworn statement in that regard from Wayne Cooper in particular, with further provisions deeming a waiver of any applicable privilege or privacy concerns;

9. compel the production of medical and care records relating to the deceased from “any party who assessed or provided services and/or care to the deceased”, including a number of specifically identified physicians, hospitals and other health care professionals and services, with further provisions deeming a waiver of any applicable privilege or privacy concerns;

10. permit “any person affected” by the Order for Directions to make objections to the court on or before June 24, 2022; and

11. formally adjourn the application sine die, returnable on 14 days notice, with all costs reserved to the judge “hearing the final adjudication of this matter”.

Concerns

[5] I have gone over the available background to this matter at some length in order to explain and emphasize what I regard as a fundamental failing, apparent lack of perspective and/or inattention to the applicable Rules of Civil Procedure in relation to this matter.

[6] Without limiting the generality of the foregoing, and at the risk of some repetition:

a. This particular litigation was commenced by way of an application pursuant to the Rules of Civil Procedure; an application that was then served in accordance with those rules.

b. Of the named respondents, only one – Ms Krantz – seems to have filed a notice of appearance “forthwith” as required by Rule 38.07(1) of the Rules of Civil Procedure, or at all. To the extent Mr Bell has participated in the proceeding, he has done so not as a named respondent with any obligation to file such a notice of appearance, but as a clearly interested party insofar as the contemplated Order for Directions would affect him as one of the deceased’s former solicitors; i.e., as someone who would be compelled, by provisions of that contemplated order, to abide by a deemed waiver of the deceased’s solicitor-client privilege, spend time compiling and producing client file documents relating to the deceased, and spend time preparing for and submitting to a written or oral examination.

c. It needs to be remembered that the initial and primary relief requested by the formal application is a declaration that the relevant 2016 will is invalid and of no force or effect. Mr Bell and Ms Krantz have no substantive interest in the resolution of that issue; i.e., they inherently have an interest in this matter only insofar as they may be impacted by legal procedures and court orders pursuant to which that issue is to be addressed and substantively determined. Moreover, the application material makes clear that it is only the deceased’s surviving children who have a substantive personal interest in a formal determination as to whether the 2016 will is valid or invalid, in turn determining whether it has or does not have any legal effect.

d. However, of those four surviving children, only one is the applicant, (Ms Crowley), and the other three, as named respondents, apparently have failed to comply with the mandated procedure, (i.e., the filing of a notice of appearance), required to maintain their right to have any say in how the legal issues raised by the application, (including the formal and express request for a court declaration that the 2016 will is invalid), are to be decided. In particular, Rule 38.07(2) makes it clear that a respondent who fails to deliver a notice of appearance in relation to a served application is not entitled to:

i. receive notice of any step in the application;

ii. receive any further document in the application unless the court orders otherwise, or the document is an amended notice of application that changes the relief sought;

iii. file material, examine a witness or cross-examine on an affidavit on the application; or

iv. be heard at the hearing of the application, except with leave of the presiding judge.

e. The fact that none of the named respondents has filed a notice of appearance in response to the served application seems clear not only from my review of the relevant One Drive folder, but by the filed “Consent” to the draft Order for Directions being signed only on behalf of the applicant and counsel for each of the deceased’s two former lawyers. Implicitly, that “Consent” could only suffice to represent the universal agreement of all parties with a continued right to participate in the application proceedings if the other named respondents, (i.e., the deceased’s surviving children apart from the applicant), had failed to file a notice of appearance, as required by Rule 38.07(1) of the Rules of Civil Procedure.

[7] In these circumstances, I think it is incumbent on the parties formally consenting to the submitted Order for Directions, but primarily the applicant, to provide the court with a more sufficient explanation as to why the requested relief is necessary and appropriate.

[8] In that regard, I think it should be remembered and emphasized that this court’s inherent jurisdiction over estate matters is one of its oldest and most closely guarded equitable jurisdictions, and that the court’s authority and powers in that regard are not to be exercised unthinkingly, on request, without the provision of an adequate justification.

[9] In this case, I am presented with a situation where:

a. there seem to be only four persons, (the four surviving children of the deceased), with a substantive interest in the deceased’s estate, and therefore any substantive interest in a determination regarding the validity of the will signed by the deceased in August of 2016;

b. one of those children has brought a formal application asking the court for, inter alia, a formal determination that the relevant 2016 will signed by the deceased is invalid and of no force and effect;

c. the other three children have not filed a notice of appearance in response to that formal application, preserving any right they otherwise might have had to participate in this legal proceeding to determine whether or not the relevant 2016 will is valid;

d. the evidence filed by the applicant in support of her application, and the application itself, therefore will be formally unchallenged and uncontested;

e. the application’s outstanding formal request for a declaration that the 2016 will is invalid and of no force or effect therefore almost certainly will be successful if and when the applicant moves forward with her application without the further participation of the remaining named but defaulting respondents, in a manner akin to a motion for default judgment, with an outcome nevertheless binding on those defaulting respondents.

[10] In those circumstances, where operation of the applicable Rules of Civil Procedure effectively has resulted in a streamlined and uncontested procedure to resolve the primary issue and request for relief raised by the application, what is the justification for the court making an order for directions that complicates and broadens the litigation significantly by:

a. converting the matter to an action;

b. effectively restoring the defaulting respondents to the status of litigants with full and unfettered rights of participation, contrary to the rules; and

c. making numerous directions facilitating extensive and possibly onerous documentary productions from the parties and non-parties, discovery examinations and formal examinations of non-parties, (with ancillary waivers of otherwise applicable solicitor-client privilege and rights of privacy), that are clearly more appropriate to extended contested litigation, with all the attendant significant time and expense that entails?

[11] Leaving aside the immediate interest of the parties, why should the court make an order that will facilitate consumption of its scarce resources in such a way; i.e., by converting a streamlined and uncontested proceeding into a complicated and contested proceeding?

[12] It may be that the applicant is willing to disregard the failure of her siblings to file notices of appearance, and accept/acknowledge may have been informally communicated indications of their positions and requests regarding the manner in which this litigation will proceed. The provisions of the draft Order for Directions contemplating/indicating that one sibling will support the position of the applicant, one sibling will oppose the position of the applicant, and one sibling will take no position in that regard, suggest the possibility of some measure of informal communication or dialogue between the siblings in that regard.

[13] However, there is nothing in the relevant One Drive folder for the matter, (e.g., by way of a further supporting affidavit outlining further events between service of the application and its current return in writing before the court), to confirm such informal discussions and continued participation in the litigation by the respondent siblings, notwithstanding their apparent failure to file any notices of appearance.

[14] Moreover, if the respondent siblings are still participating in the litigation on an informal basis with the express or implicit agreement of the applicant, (notwithstanding their failure to deliver formal notices of appearance as required by the Rules), then their Consent to the proposed Order for Directions also should be confirmed by further documented consent of those respondent siblings. The Consent that has been filed, signed only on behalf of the applicant and the deceased’s two former lawyers, otherwise would not adequately reflect the agreement of all agreed and de facto participants to the ongoing litigation who will be affected by the contemplated and requested Order.

[15] At a minimum, I therefore think the requested Order for Directions cannot be granted without the applicant presenting further information to the court, (in the form of a supplementary affidavit and/or oral submissions to be made after a notice of return of application – which need not be served on any respondents who have not filed a notice of appearance), addressing such concerns and making it clear why such an order is necessary and appropriate in the circumstances, having regard to the above realities.

[16] If any such Order for Directions is to be made, in my view counsel also should direct their attention, (as well as further evidence and submissions), to additional concerns that include the following:

a. whether it is necessary and appropriate for Bonnie Jarvis to remain a party to the litigation if she intends to take no position in relation to the validity of the 2016 will, (the primary focus of the application, to which all the ancillary relief seems directed), and is content with the further provisions of the contemplated Order for Directions;

b. whether the word “neither” needs to be inserted after the first four words in paragraph 4 of the proffered draft Order for Directions;

c. whether it is necessary to formally amend the title of the underlying application proceedings, if the court is to order formal dismissal of the application vis-à-vis Ms Krantz on a without costs basis, and the exchange of pleadings identifying the remaining parties as plaintiffs and defendants – which would suggest a different title of proceedings in any event;

d. whether it makes sense to identify Ms Faubert as a defendant (and co-defendant with Wayne Cooper), rather than a co-plaintiff with Ms Crowley, if, (as the proffered draft Order for Directions suggests), Ms Faubert actually maintains the same substantive positions as Ms Crowley and opposes the substantive positions of Wayne Cooper;

e. whether further production of records is required at all, and if so, whether it needs to be as extensive as the proffered draft Order for Direction contemplates, (especially in relation to non-parties), if the underlying application is primarily focused on validity or invalidity of the 2016 will; and

f. whether the provisions of paragraph 25 of the draft Order should be revised so as to preclude objections and/or further participation in the proceedings by any respondent who failed to deliver a notice of appearance, (without further order of the court), and/or allow any other “person affected” by the Order for Directions to raise an objection and make submissions to the court within 30 days of having been served with the finalized, issued and entered order; i.e., as opposed to requiring any such objection and submissions by a fixed date that may leave such persons with inadequate time to take such actions, especially if they need to retain and instruct counsel in that regard.

[17] Because of the concerns identified above, I have not signed the draft Order, notwithstanding the filed Consent executed on behalf of the applicant and each of the deceased’s two former solicitors.

Further proceedings

[18] In my view, if the applicant and the deceased’s two former solicitors are intent on pursuing the request for an Order for Directions in the form attached to their filed Consent, further evidence and submissions are required to address the above concerns. In that regard:

a. they may do so after the filing of further written material, with a request that the application once again be considered in writing without an oral hearing if the matter remains uncontested; or

b. after the filing of further written material, they may file a further notice of return of application, (which in my view need not be served on any respondent who has failed to deliver a notice of appearance as required by the Rules of Civil Procedure), to have the matter addressed via an oral hearing in “regular motions court”; a process which would allow any remaining concerns of the court to be addressed in an interactive way, and help bring finality to the matter without any further delayed “back and forth” procedures in writing.

[19] Alternatively, it seems to me, (for the reasons outlined above), that the applicant may be in a position to proceed with a requested substantive hearing of her application, (including her request for a declaration that the relevant 2016 will is invalid), on an uncontested basis; i.e., if the respondents other than Ms Krantz have defaulted on their obligation to deliver a notice of appearance, if the applicant and Ms Krantz are content to have the proceeding vis-à-vis Ms Krantz dismissed without costs, and no further productions or information are required from Ms Krantz or Mr Bell.[^1] In that event, the Applicant should file a further notice of return of application, (which once again need not be served on any respondent who has failed to deliver a notice of appearance), to have the matter heard in writing or orally, after filing whatever additional documentation, (e.g., further affidavit material and/or a factum and authorities), if any, the Applicant may want the court to consider.

[20] While I am quite willing to address the matter again, in whatever form further proceedings may take, it should be emphasized that I am not seized of the matter. It may be dealt with by any judge of the court.

Justice I.F. Leach

Date: May 26, 2022

[^1]: If such productions and disclosure are required, with corresponding need for a deemed waiver of the deceased’s solicitor-client privilege in that regard, it seems to me that is something that could be accomplished via an appropriate motion for a consent order within the context of this application, with the relevant Consent executed only on behalf of the applicant and the deceased’s two lawyers to the making of an appropriate order, prior to the applicant then filing any further desired resulting evidence and proceeding with her application on an uncontested basis.