Hello,
Happy Summer!
The New Year started off a bit manic for our team for all sorts of reasons including return to the office, new team members joining and generally cleaning up after long periods out of the office-kind of like an ongoing exercise in spring cleaning! We are thankful to be busy and for the referrals of our friends and community partners.
We welcomed last month a new addition to our team with Danielle Brooks, an experienced office manager who we could not be more thrilled to work with, to get us all working optimally again.
We also welcome this month Christin Craig who will be filling our client relations coordinator role.
We welcomed a new lawyer to our team, Nima Hojjati. Our team has had some modest growth reflective of the increase in litigation in our aging demographics.
Our team members individually continue to develop niches and expertise that benefit the team in our collaborative approach to client matter resolution.
Some team members sat STEP examinations this month and continue efforts to TEP qualification. There have been a lot of presentations and papers-make sure you look at our resources page for these. Albert Oosterhoff became an LSM having been awarded the prestigious Law Society Medal.
Enjoy your summer, and as ever, enjoy the read,
Kim
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1. WEL WELCOMES NIMA HOJJATI, ASSOCIATE LAWYER
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WEL is pleased to welcome Nima Hojjati as our newest associate lawyer. Nima was called to the Bar in 2018. He is Chair of the Law Society of Ontario’s Equity Advisory Group (EAG) which is tasked with assisting in the development of policy options for the promotion of equity and diversity in the legal profession. He is fluent in both Farsi and French. For Nima’s contact details, please check our website.
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2. WEL WELCOMES DANIELLE BROOKS
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WEL is pleased to welcome Danielle Brooks as our Office Manager.
For more details, check out our website:
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3. WEL WELCOMES CHRISTIN CRAIG
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WEL is pleased to welcome Christin Craig as our Client Relations Coordinator
For more details, check out our website:
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4. ONTARIO POLICE SEMINAR, JUNE 23, 2022
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Laya Witty and Rebecca Betel co-taught at the Ontario Police College, Elder Abuse Seminar on June 23, 2022. |
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5. OBA ELDER LAW DAY, JUNE 20, 2022
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Matthew Rendely and Kavina Nagrani of NIAK LAW LLP co-chaired the Ontario Bar Association’s Elder Law Day: A Conference For Lawyers Representing Seniors. The conference had expert panelists presenting on a variety of topics concerning personal care and access, financial management and estate planning, and litigation and dispute resolution. Matthew would like to thank all moderators, speakers and community partners for their involvement and assistance in putting on this conference, including March of Dimes Canada, FAIR Canada, and the Toronto Police Services Community Partnership and Engagement Unit. If you missed this year’s program, you will soon be able to access a recording of the conference on the OBA’s website.
Albert Oosterhoff presented on: A Cross-Canada Update on Predatory Marriage.
Mark Handelman presented on: Medical Assistance in Dying
Bryan Gilmartin presented on: Case law update concerning the recent decision of the Ontario Court of Appeal of Ontario, Lockhart v. Lockhart, 2021 ONCA 329 | 2020 ONSC 4667
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6. COMMUNITY HOUSING MANAGERS, JUNE 7, 2022
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Mark Handelman spoke at Community Housing Managers in Cornwall on Powers of Attorney on June 7, 2022. |
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7. LSO SIX-MINUTE ESTATES LAWYER, MAY 25, 2022
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Kimberly Whaley presented her article, Proving Due Execution, at the LSO Six-Minute Estates Lawyer program on May 25, 2022.
Paper:
Presentation:
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8. CANADIAN LAWYER WEBINAR, MAY 18, 2022
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Kimberly Whaley and Ian Hull presented at the Canadian Lawyer Webinar on May 18th on Latest Update on Estate Claims.
Paper and checklist can be accessed at:
The video link for the webinar can be accessed at:
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9. LEGAL EDUCATION OF ALBERTA (LESA), MAY 2022
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John Poyser was on a panel disucssing the Assessment of Capacity (alongside Dr. Arlin Pachet, Shelley Waite, Jennifer Lamb, and Kimberly Whaley) for the Legal Education Society of Alberta (LESA), Spring Refresher, Banff Alberta. |
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10. STEP CALGARY, MAY 26, 2022
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John Poyser presented at the STEP Calgary on Dealing with Special Issues During Estate Planning (Recovered Capacity. Tear Away Wills, Testing for Testamentary Capacity, Interviewing for Equitable Flaws on May 26, 2022. |
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11. OBA ELDER LAW EXECUTIVE
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Matthew Rendely has been appointed the Secretary for the OBA Elder Law Executive and a Member-At-Large for the OBA Trusts and Estates Executive. He looks forward to serving the Bar in these roles. |
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12. ETR PUBLICATIONS PENDING RELEASE
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John Poyser has the following publications pending release with the Estates and Trust Report in June 2022:
Case Comment, Gefen Estate v. Geffen: The Status of Unconscionable Procurement in Ontario (2022)
Case Comment, Sandwell v. Sayers: The State of Unconscionable Procurement in British Columbia (2022)
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13. AMENDMENTS TO TORONTO ESTATES LIST PRACTICE DIRECTION
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The Toronto Estates List Practice Direction has been amended to clarify procedures for passings of accounts (see paragraphs 16-19). Part F advises parties to book a case conference, not a 9:30 a.m. scheduling appointment, if more than scheduling is at issue.
EN: Consolidated Practice Direction Concerning the Estates List in the Toronto Region | Superior Court of Justice (ontariocourts.ca)
FR: Directive de pratique consolidée concernant le rôle des successions – Région de Toronto | Cour supérieure de justice (ontariocourts.ca)
A copy of the New Estates Procedure Manual can be obtained by sending a request to [email protected]
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WEL CONGRATULATES LAYA WITTY |
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WEL congratulates Laya Witty on completing her first course towards the TEP designation, and on passing her first exam in her Beth Din Advocacy course. |
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THE ADVOCATES SOCIETY, THE ERIC HOAKEN EXCELLENCE AWARD, 2022 |
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WEL congratulates Frank Walwyn of WeirFoulds LLP on receiving The Eric Hoaken Excellence award.
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WEL CONGRATULATES THE WINNERS OF THE OBA AWARDS, 2022 |
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AWARD FOR DISTINGUISHED SERVICE
Congratulations to Michel W. Drapeau, Ian M. Hull, The Honourable Audrey Ramsay, Reuben M. Rosenblatt, Q.C., and Ena Chadha, on receiving the OBA Award for Distinguished Service.
JOEL KUCHAR AWARD FOR PROFESSIONALISM AND CIVILITY
Congratulations to Esi A. Codjoe, J. Gregory Richards, and Susan E. Gunter, on receiving the Joel Kuchar Award for Professionalism and Civility.
LINDA ADLAM MANNING AWARD FOR VOLUNTEERISM
Congratulations to Juliet L. Knapton, and Vanessa M. Lam, on receiving the Linda Adlam Manning Award for Volunteerism.
DAVID SCOTT AWARD FOR PRO BONO
Congratulations to Michelle S. Henry, and Janani Shanmuganathan, on receiving the David Scott Award for Pro Bono.
MUNDELL MEDAL FOR LEGAL WRITING
congratulations to Professor Philip Girard, on receiving the Mundell Medal for Legal Writing
OBA FOUNDATION AWARD
Congratulations to The Honourable Todd Archibald, and Professor Noel Semple on receiving the OBA Foundation Award.
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(i) A QUISTCLOSE TRUST OR A DUD? |
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By Albert H. Oosterhoff
In Prickly Bay Waterside Ltd v British American Insurance Company Ltd[1] the Privy Council considered the nature of the ‘Quistclose trust’. The reasons are useful to gain an understanding of that device. The term ‘Quistclose trust’ derives from the eponymous name of the case Quistclose Investments Ltd v Rolls Razor Ltd,[2] a 1968 decision of the Appellate Committee of the House of Lords.
Although a Quistclose trust does not seem to have yet been established in Canada, its requirements have been discussed in two cases, both of which held that a Quistclose trust had not arisen on the facts.[3] I shall discuss the nature of the Quistclose trust further below, but its essence is that moneys are lent to be used for a specific purpose and the parties intend that the lender retain an interest in the moneys. The borrower is then both a debtor to and trustee for the lender. If the money is paid as intended, the trust is fully performed and comes to an end, leaving only a debt. If it is not paid because the borrower becomes insolvent, the money is not available to the borrower’s other creditors but is held in trust for the lender.
The facts in the Quistclose case were as follows: Rolls Razor was a client of Barclays Bank, but it was in financial difficulties and had exceeded its allowed overdraft. A lender agreed to lend Rolls Razor one million pound on condition that it obtain funds from another source to pay its shareholders a dividend that was soon due. That source was Quistclose. It agreed to lend Rolls Razor the required amount on condition that the moneys would be used only for that purpose and that they would be paid into a special account opened for that purpose with Barclays Bank until the dividend was paid. Rolls Razor was unable to raise further funds to stay in business and went into liquidation. The bank then set off the balance in the special account against the debit balance owed to it by Rolls Razor. Quistclose sued the bank to recover the moneys and the House of Lords held that it was entitled to do so once it established that the moneys were impressed with a trust in its favour, and that the bank had notice of the trust.
The following is an abbreviated version of the facts in Prickly Bay. Prickly Bay (‘PBWL’) was a developer of houses and apartments in Grenada. After being sued by its neighbour, Mr Steele, the parties agreed to a consent order in 2007, under which PBWL agreed to purchase two properties adjacent to the development from Mr Steele for 5 million USD on the following terms: PB was to pay 2.5 million USD for one property and a deposit of 250,000 USD for the other at the time of the agreement. The purchase of the second property was to be completed on 18 May 2019 with interest payable at 5% per annum. PBWL also had to provide a bank guarantee for the payment of the balance. British American Insurance Company Ltd (‘BAICO’) agreed to give the guarantee if a deposit of 2.475 million USD was placed with it. The principal director of PBWL and his wife, Mr and Mrs Lee, agreed to lend PBWL the sum of 5.475 million USD, part of which was to be provided by a guarantee. Mrs Lee agreed to provide or procure the guarantee so that there would be funds available to pay the 2.475 million USD on 18 May 2009. BAICO then entered into a standard annuity with Mrs Lee and PBWL deposited the 2.475 million USD with BAICO as the premium for the annuity in Mrs Lee’s name. The purpose of the annuity was to allow Mrs Lee to maximize the payment of interest. The annuity was scheduled to retire on 18 May 2012, and she was to receive interest at 8.42% per annum during the period. BAICO then insisted that Mrs Lee assign her rights under the annuity to Mr Steele, which she did.
BAICO then became insolvent and went into judicial management. Mr Steele sued PBWL to enforce the consent order. PBWL applied for a declaration that the moneys were held on trust by BAICO, and the court made an order joining BAICO.
Henry J of the Eastern Caribbean Supreme Court rendered judgment in 2015 in favour of Mr Steele and BAICO, after which PBWL paid the amount due to Mr Steele to complete the second sale agreement and Mr Steele assigned his right and interest in the annuity to PBWL. Henry J rejected PBWL’s argument that the moneys were held upon a Quistclose trust. She held that there was no mutual understanding between the payer and BAICO that the moneys were not to form part of BAICO’s general assets and could not be freely disposed of by it. In other words, there was no indication that Mrs Lee and PBWL retained an interest in the funds during the life of the annuity (para 17).
PBWL appealed to the Court of Appeal of the Eastern Caribbean Supreme Court. It dismissed the appeal for essentially the same reasons. The court therefore concluded that BAICO was entitled to intermingle the moneys with its own assets (paras 18ff).
PBWL then appealed to the Privy Council. The Board agreed with the reasons of the lower courts. The Board’s advice was given by Lady Arden. The Board first considered a couple of cases that outlined the principles necessary to establish a Quistclose trust. Both were decisions of the Court of Appeal of England and Wales. In the first case, First City Monument Bank Plc v Zumax Nigeria Ltd,[4] the court held that there was no Quistclose trust. If it were treated as an express trust, the required certainty of intention, objects, and subject matter were lacking. And if it were treated as a resulting trust, the claimant had to show more than that the moneys were paid for a purpose, for example, by proving that they were not at the free disposition of the recipient, or that they were paid into a segregated account (para 21). In the second case, Bieber v Teathers Ltd (In Liquidation),[5] the court found that were was a Quistclose Trust initially because the moneys were held in a client account for the purpose of investing. But the funds were then paid on behalf of the client to a partnership so that they became partnership property and were no longer held on a resulting trust for each individual (para 22).
The Board then discussed the features of the Quistclose trust in detail with particular reference to Twinsectra Ltd v Yardley.[6] a case in which the House of Lords followed Quistclose Investments Ltd v Rolls Razor Ltd, but broadened its principles significantly (paras 23-29). The facts were these: Yardley received a loan from Twinsectra to buy a specific property but asked Sims, a firm of solicitors that purported to act for Yardley, for an undertaking to ensure that the moneys would be used only for that purpose. Sims granted the undertaking but breached it by paying the moneys to another firm of solicitors, Leach, which acted for Yardley, and which promised Sims that the moneys would be applied in accordance with the undertaking. Leach did not do so but paid the moneys out to Yardley for other purposes in accordance with his instructions. Twinsectra sued Yardley, Sims, and Leach. The House of Lords held that a Quistclose trust had been created. The majority of the law lords treated the trust as an express trust because the lender intended to retain beneficial ownership of the moneys (para 23) However, Lord Millett regarded it as a resulting trust because the lender did not intend to transfer beneficial ownership to the borrower (paras 24-28).
Lord Millett regarded the Quistclose trust as a default trust, because: (a) it arises as a matter of law and becomes unconditional on failure of the specified purpose; and (b) it takes subject to the arrangements the parties have agreed about how the moneys should be dealt with. He confirmed that the trust does not arise simply because the moneys are lent for a particular purpose. If nothing else is said about it, the borrower is free to dispose of the moneys as it sees fit. So the question that must be answered in every case is whether the parties intended that the moneys are to be used exclusively for the particular purpose. If it is, the borrower is a fiduciary.
Lady Arden noted (para 29) that Lord Millett’s judgment has become the accepted analysis of Quistclose trusts. It is sometimes suggested that there must be a ‘mutual intention’ on the part of lender and borrower that the funds should be used exclusively for the specific purpose (para 30). However, Lady Arden noted that Lord Millett was of opinion that it would be sufficient if one party imposed that condition on the other who acquiesced in it. Further, it is not necessary to find an intention that the funds should not form part of the general assets of the recipient; an intention that the lender should retain some beneficial interest in the funds is sufficient. Indeed, the trust does not have to require that it be used ‘exclusively’ for the purposes of the Quistclose trust, for the parties may have agreed to other terms. This flows from the fact that the resulting trust is only a default trust. It applies only if and to the extent that the parties have not agreed to what should happen to the moneys if the trust fails (para 31).
Although the Board paid close attention to, and followed, Lord Millett’s views, it did not dismiss the possibility that the trust could be express. In other words, it can either be express or a resulting trust. But it is now generally accepted that if or to the extent there is no express trust that applies on failure of the specified purpose, there is a resulting trust to the lender. Regardless, the lender will only be able to recover the moneys once the purpose for which they were lent fails if the evidence shows sufficiently that the lender did not intend to dispose of the whole beneficial interest (paras 32-33).
The Board then applied these principles to the facts. The appellants emphasized that the assignment of the annuity raised an inference that the parties intended that BAICO would use the capital at the end of the period to pay the amount owing to Mr Steele from Prickly Bay 0para 36). The Board agreed that assignment should be given some weight, but it was not sufficient to lead to the conclusion that there was a Quistclose trust (para 37) for two reasons: (a) the conditions of the annuity and the assignment were equally consistent with PBWL providing collateral to BAICO as security for its guarantee (para 38); and (b) although there was a purpose for the loan and the assignment, that was insufficient to indicate that the moneys were subject to a trust (para 39). Moreover, the issue of the annuity was inconsistent with the alleged Quistclose trust for two reasons: (a) when Mrs Lee paid the premium for the annuity, she paid for an investment product with an agreed rate of return, the investment being at the discretion of BAICO, and for payment of a fixed sum to her on maturity (paras 40-41); and (b) with a Quistclose trust, the moneys are normally segregated from the borrower’s other funds; while that is not a requirement, the lack of a requirement that they be kept separate indicates that they were not held in trust (para 42). Further, there was nothing to indicate that PBWL retained the beneficial interest in the moneys (para 44).
Accordingly, the Board dismissed the appeal.
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[2] [1970] AC 567, [1968] UKHL 4, sub nom Barclays Bank Ltd v Quistclose Investments Ltd.
[3] See Re Cliffs Over Maple Bay, 2011 BCCA 180; Ontario (Training, Colleges, and Universities) v Two Feathers Forest Products LP, 2013 ONCA 598.
[5] [2012] EWCA Civ 1466.
[6] [2002] UKHL 12, [2002] 2 AC 164.
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(ii) DESIGNATION OF BENEFICIARIES AND THE PRESUMPTION OF RESULTING TRUST |
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By Albert Oosterhoff
Much has been written in recent years on the question whether the presumption of resulting trust applies to beneficiary designations made under various pension and other plans. Regrettably, there were a few cases which held that it does.[1] Both earlier and more recent cases have concluded that it does not.[2] Estate lawyers and others have welcomed the more recent cases, because the cases which concluded that the presumption of resulting trust applies created much uncertainty and interfered with the intention of the plan participant who made the designation. But there remains sufficient uncertainty that it is helpful to consider another recent case which also holds that the presumption does not apply to plans.
Roberts v Roberts[3] contains a helpful discussion of the issue and will serve to put another nail in the coffin of the idea that the presumption of resulting trust applies to beneficiary designations. Ms Roberts died in 2018 at age 96. She remained fully capable and managed her assets and financial affairs until her death. By her will she left her estate in equal shares to her four surviving children Constance, Peggy, Catherine, and Douglas, and her sole grandchild, Dianne, and named her daughters, Constance and Peggy, her executors. She also named Peggy her attorney under her enduring power of attorney. In 2014 she opened a Tax Free Savings Account (‘TFSA’) at a financial institution and signed the necessary paperwork, including a beneficiary designation that named Peggy her beneficiary. She made regular contributions to it until her death. All the children knew of the TFSA and the beneficiary designation (para 12), but only Constance spoke to her mother about it in 2014. She replied, ‘I know what I’m doing. I’m not stupid’. In 2017, Catherine found a bank statement relating to the TFSA, and made a copy of it. She contacted Douglas and asked him if he know of it. He said that he did not. He testified that he contacted Peggy and that she told him that when their mother died, the amount would be shared five ways in accordance with her will. After the mother’s death, Douglas testified that he had a second conversation with Peggy about the TFSA and she said that their mother had cashed it out a few years earlier. Peggy denied both conversations. A meeting scheduled in 2019 between the four children was cancelled. Douglas, Catherine, and Diane then brought this action claiming that they were entitled to an equal share of the balance in the TFSA. The case raised four issues. I shall discuss them seriatim.
1. Limitations
The executors argued that the claims to the TFSA were statute barred. They took the view that the claimants knew of the beneficiary designation in 2017 and that the limitation period began then. However, the court held that it did not. Ms Roberts was still alive then and had full ownership of the TFSA, so Peggy’s interest did not become vested until her mother’s death. Thus, no injury attributable to any party gave rise to a claim in 2017. It was not until a formal accounting was made in 2019 that the claimants would have learnt that the TFSA was not included in the estate, and they filed their claim within two years of that date.
2. Estoppel by Representation
The claimants argued that Peggy represented to them in 2017 that the TFSA would be divided five ways in according with the will. The court found that Douglas’s evidence on the matter was not credible and accepted Peggy’s evidence that she had never made such a statement. But significantly, the court went on to note that until her mother’s death, Peggy did not have any authority with respect to the TFSA that could create an estoppel by representation. While her mother named Peggy her attorney, her mother never lost capacity while she lived and thus Peggy was not acting in a representative capacity for her before her death.
3. Presumption of Resulting Trust
This was the main issue. The court referred to several of the cases mentioned above. It also discussed Re Morrison Estate.[4] In it Graeser J considered s 71 of the Wills and Succession Act,[5] which provides that a person may designate a beneficiary of a plan by an instrument signed by a participant, or by will stated. His Honour stated that in his opinion there was no sound policy reason for treating beneficiary designations made under an instrument differently than those made under a will. However, this was dictum, for he went on to state that he did not have to decide whether the effect of s 71 was to make beneficiary designations made under an instrument testamentary, since he could decide the case without reference to the presumption of resulting trust. On the evidence he found that the father’s beneficiary designation of his RRIF in favour of his son was intended to be a gift.
In Roberts the court held that the beneficiary designation was effective for three reasons:
First, it is clear from s 71 that the designated benefit is not perfected until the death of the plan participant and therefore, the designations, whether made by instrument or by will, are testamentary. It followed Mak (Estate) v Mak[6] on this point. Further, it stated that if Ms Roberts had made the designation by will, no presumption of resulting trust could arise, for she would be presumed to have intended the benefit (assuming capacity and lack of undue influence). And there was nothing in s 71 to indicate that a designation by instrument should be treated differently.
Second, the benefit conferred by designation of beneficiary differs from an inter vivos transfer. The presumption of resulting trust applies to the latter but not to the former, since the designation does not give the beneficiary any rights while the plan’s participant is living. Indeed, the latter can revoke the designation at any time and therefore the designated beneficiary does not hold any interest in trust for the plan participant.
Third, the beneficiary’s interest is only enforceable on the death of the plan participant.
In fact, said the court, the beneficiary designation itself was direct objective evidence of Ms Robert’s intent to benefit Peggy. She fully understood the nature and effect of the beneficiary designation. Moreover, there was evidence that Peggy had provided financial assistance to her mother for which she had not sought reimbursement, so it was reasonable to draw an inference that she wanted to compensate Peggy for her financial assistance and for her help in general while she lived.
4. Expenses Incurred by Personal Representatives
The executors claimed payment for all expenses incurred by them in the administration of the will. The court assessed the claim, found it be reasonable, and directed that it be paid from the estate.
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[1] E.g., Re Dreger Estate, 1994 CarswellMan 89 (CA); Calmusky v Calmusky, 2020 ONSC 1506.
[2] Nelson v Little Estate, 2005 SKCA; Mak (Estate) v Mak, 2021 ONSC 4415; Fitzgerald v Fitzgerald Estate, 2021 NSSC 355.
[3] 2021 ABQB 945, 72 ETR 4th 206.
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(iii) BUT I LOVE YOU... SEND ME THE MONEY! ROMANCE SCAMS INVOLVING ADULTS IN LATER-LIFE |
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By Kimberly Whaley
Background on Dating and Romance Scams
The Toronto Police Service have identified that romance scams targeting the elderly occur when an online relationship begins, usually through a dating or social media site. The fraudster, who is often from another country, declares their love, often offering to visit the senior or vice versa. At some point, the fraudster asks for money. A request to cover medical bills for themselves or a family matter is often the reason used. TPS reports that it is rare for the fraudster and the victim to actually meet in person, unless the scam takes place at the local level.[1]
According to the Competition Bureau of Canada, on dating sites, scammers “after they have sent a few messages, and maybe even a glamorous photo, will be asked (directly or more subtly) to send money to help their situation … Some scammers even arrange to meet, in the hopes that they can procure presents or money – and then they disappear.”[2]
By the Numbers: Canada and the USA
In February 2022, the Canadian Anti-Fraud Centre released a fraud alert for romance scams. Based on fraud reports to the CAFC, romance scams were responsible for the second highest amount of fraud-related dollar loss is 2021 (investment scams were the highest). The CAFC reported that scammers are using advanced methods to appear legitimate and trick people into trusting them. The CAFC also reports “an increase in the number of cryptocurrency investment scams linked to romance scams. These occur when the person you are in a virtual relationship with tries to get you to invest in a cryptocurrency and will end up stealing your money or personal information."[3] In 2021, the CAFC received more than 1,300 romance fraud complaints from victims who reported combined losses of $43 million. The CAFC also provided some standard red flags to look out for.[4] In 2018, 760 victims of romance scams in Canada reported losses of more than $22.5 million dollars, surpassing all other types of fraud in that year.
In the United States of America, a recent FBI alert reports that victims to romance scams lost over $1 billion dollars in 2021. What’s more, romance scams reported to the Federal Trade Commission (FTC) rose 80% in 2021 – victims lost approximately $547 million dollars. Emma Fletcher, analyst with the FTC told USA today, “the bottom line is most consumers are not reporting fraud when it happens and romance scams may be particularly unlikely to be reported because there can be a lot of embarrassment around it.”[5] The FTC reports that individuals 70-years-old and older experience the highest losses; nearly $9,000/case compared to 18 to 29-year-olds who experience on average a loss of $750/case. The largest losses come from payments made in cryptocurrency which equalled approximately $139 million in losses in 2021.
Sha Zhu Pan – the ‘Butchering the Pig’ Scam
This is a highly sophisticated romance and cryptocurrency investment scam. According to Carlo Handy Charles, the scammers are mainly working for Chinese organized crime gangs who pose as attractive professionals or entrepreneurs looking for true love. Charles reports that they “use dating apps, including Tinder, Grindr and Hinge, as well as social media platforms like Facebook and Instagram to match with their potential victims.”[6] The scammers then use a combination of fake social media profiles and psychological manipulation. Charles reports “they slowly gain victims’ trust by using their personal information on social media against them to play the role of their dream romantic partner. They also shower their victims with messages of love and affection day and night.”[7] According to the Global Anti-Scam Organization, criminals call this stage the ‘fattening up or raising of the pig’ before slaughtering it. “Contrary to more traditional romance scams, scammers manage to convince their victims that they are not interested in their money or personal banking information. Instead, they want to build a bright economic future with their soulmate by investing in cryptocurrency together as a couple." Once the victim lets their guard down, they are convinced to invest increasing amounts of money. Victims have emptied out their bank accounts, spent inheritances and life savings, taken out loans and mortgages, and sold houses and cars to invest in fake crypto currency platforms
Recent and Noteworthy Cases
On March 17, 2022, a 34-year-old Mississauga man who was accused of romance scams targeting seniors was arrested and charged with six counts of fraud. In 2019, after an Oakville resident reported handing over around $70,000, an investigation began. Halton Regional Police investigators allege that Toju Ariri, using different aliases such as Dante Leonardo, Sean Bruno, and Jason Roberto “would initiate and maintain contact with his victims through email and text, establish trust through this remote relationship, and convince them to transfer funds.”[8] Ariri bilked his victims out of $370,000.
In February of 2022, Norfolk County OPP reported that a victim contacted police to report that she had been defrauded of $200,000 in a romance scam.[9]
In April 2022, the Lillooet B.C. RCMP detachment reported that a woman contacted them on April 7 to report that she had been a victim of a romance scam. She traveled to South Africa in 2021 to meet a man she said appeared to be wealthy and well-connected. She returned to Canada with plans to have him join her, however, soon, “the man began asking the woman to send him money for various expenses, including plane tickets and diamonds.”[10] Over the next 3 months, she sent $23,000 to the man, who continued to delay his plans. When she refused to send more money, the relationship ended.
In 2021, a multi-organizational task force completed a two-year “lengthy and complex investigation”[11] on a 35-year-old Etobicoke man who swindled 21 romance scam victims. The investigation started after a Prescott, Ontario woman contacted police in October 2019 reporting that she had lost $50,000 to a man she met on social media. A second and larger investigation was undertaken by an Ottawa unit of the OPP anti-rackets branch, the Canadian Anti-Fraud Centre and the Financial Transactions and Reports Analysis Centre of Canada. The accused, Nosa Soloman Oriakhi, is charged with multiple offences under the federal criminal code.[12]
In July 2021, a Huron County senior lost $700,000 to a romance scam. In that case, the victim’s daughter reported the crime. The early investigation revealed that someone claimed to be a surgeon working for the United Nations and at one point used a ruse that he had been abducted by a terrorist entity and to procure money to pay off his ransom. Money was also used to help with surgeries, medical treatment, international flights, and other emergencies.[13]
In 2019, a senior named Margaret (last named withheld), 75-years-old and lonely after the death of her husband, joined dating site match.com. She entered an 11-month online relationship but ended up getting scammed to the tune of $140,000.[14]
Finally, in 2015, Barbara, a 76-year-old senior from B.C. entered an online dating relationship on Christian Mingle with a man who claimed to be a German engineer working on an oil rig project in Gulf of Mexico. They spoke over the phone and exchanged 100 romantic emails a day. He told Barbara he was a widower as well and that his wife died three years ago. He nursed her until she died. He was supporting a 10-year-old granddaughter after his daughter was killed in a motor vehicle accident. She began by giving him $18,000 but the amounts added up quickly. He told her he needed the money to start his oil company and that once the first project was completed, he would have access to $3.5 million. Once the money was transferred, his plans changed, and Barbara contacted the RCMP.
A Snapshot of Perpetrators
In November 2021, Toronto Police charged Aleth Duell, a 69-year-old woman with fraud over $5,000 and money laundering. According to police, the investigation found that she targeted several women online by posing as a man and striking up friendships or romantic relationships over dating websites and social media. Duell is alleged to have bilked her victims out of several millions of dollars.[15]
In September 2021, a victim was defrauded of more than $150,000 after a romantic relationship began online between a senior and the man, they believed was a retired Canadian Army Sergeant. A 21-year-old Oakville woman, a 38-year-old London woman, and three Toronto men, aged 36, 35, and 28, were all arrested and charged with fraud.[16]
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[4] Someone you haven’t met that professes their love to you; someone that wants to quickly move to a private or different mode of communication (email, text, Whatsapp, Google, Hangouts, etc.); someone who always has an excuse not to meet in person; poorly or oddly written messages – wrong names; someone claiming to live near you but is always working overseas; someone who acts distressed or angry to guilt you into sending them money; someone who discourages you from discussing them or their situation with your friends or family members (these are attempts to isolate their victim from support).
[12] Fraud over $5,000; Failing to comply with a release order; Transmitting identity information; Identity Theft (five counts); Possession of Credit Card data (18 counts); Possession of a Credit Card (9 counts); and possession of an identity document (6 counts).
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(iv) WHEN YOU SHOULD UPDATE YOUR WILL |
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Wise words shared from Laroux Peoples
1. You Get Married – although marriage no longer automatically revokes a will in Ontario, it would still be a good idea to revaluate your will when you are newly married.
2. You Get Divorced – a will made before a divorce is interpreted as though the ex-spouse died prior to the testator’s death however again, with a major change in one’s life, it would be sensible to meet with me to look at your overall plan, to ensure your to ensure your up-to-date wishes are reflected in your planning.
3. You Are a Dual US/Can Citizen or US citizen living in Canada and did not Get Tax/Estate Advice – if you did your estate plan previously with someone who did not suggest you get cross border advice, you may wish to see someone now who can assist, especially if you are not planning on renouncing your US citizenship. My colleague Canada/U.S. Cross-border Tax, Trust and Estate Planning Lawyer Michael Cirone explains how American citizens living in Canada who are selling their principal residence should get proper advice to avoid U.S Capital Gains Tax in his recent article. You can find his article here.
4. You Became a Parent – you’re going to want to ensure there is a guardian in place for your new addition to your family; especially if your previous will does not account for unborn children. Updating your will when you become a parent also gives you the opportunity to add them as a beneficiary of the estate. If you did your first will with me and you have more children now then when we first met, you should not need an update in most cases.
5. Changes to Your Financial Situation – you want your will to reflect your most current final situation whether you have either gained an asset or lost/sold an asset. If certain assets that are no longer in your possession are mentioned in the will, you will want to take those out.
6. Changes to the Individuals Named in Your Will – if someone named in your will is no longer available, by way of death, incapacity or simply a change of heart it is important to make new appointments for estate trustee or guardian as soon as possible or to take out beneficiaries that you no longer wish to gift to.
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By Nima Hojjati
The rising temperature in Toronto is a stark reminder of the statutory deadline of June 22, 2022 for long-term care homes in Ontario to ensure that all resident bedrooms are served by air conditioning as set out in section 23(7) of the General regulation under the Fixing Long-Term care Act, 2021.[1] The regulation defines “air conditioning” to include any mechanical cooling system that is capable of maintaining the temperature at a comfortable level for residents during periods of hot weather.[2]
As of June 17, 2022, the CBC reports that more than 100 long-term care homes in the province still don’t have air conditioning installed despite the June 22 deadline and the warming weather.[3] The Ministry of Long-Term Care told the CBC that 18.7% of homes were in the process of installing air conditioning, 2.9% were working toward an air conditioning solution, and about 0.6% of homes were "outstanding." The ministry also attributed delays to supply chain issues, visitor restrictions preventing contractors from entering homes, weather issues and complex structural challenges.
In the seminal case of The Queen (Can.) v. Saskatchewan Wheat Pool, [1983] 1 SCR 205, the Supreme Court of Canada held that while there is no nominate tort of statutory breach, a breach of statute can be considered in the context of the general law of negligence.[4] To be relevant, the statutory breach must have caused damages.[5] In other words, legislation could serve as a basis for establishing a standard of care in negligence.[6] A statutory requirement can inform a common law duty of care even though there is no cause of action in tort for breach of a statute.[7]
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[3] https://www.cbc.ca/news/canada/toronto/air-conditioning-long-term-care-doug-ford-1.6491558
[4] The Queen (Can.) v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 SCR 205, page 225. <https://canlii.ca/t/1lpdb>
[5] The Queen (Can.) v. Saskatchewan Wheat Pool at page 226.
[6] Del Giudice v. Thompson, 2021 ONSC 5379, at para 162. <https://canlii.ca/t/jhdzl>
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STEP Global Congress, London UK
July 7-8, 2022
Predatory Behaviours and the Vulnerable Client: A Quiet Welfare Disaster?
Moderator: L Louise Lewis, TEP, Freeths LLP, UK
Speakers: Kimberly Whaley and Daniel Holloway, University of Oxford, UK
OSGOODE ESTATE LITIGATION
October 6, 2022
Locating Missing Beneficiaries
Speaker: Albert Oosterhoff
OSGOODE ESTATE LITIGATION
October 6, 2022
Costs in Estate Litigation
Speaker: Bryan Gilmartin
COLLOQUIUM SUDBURY
October 20, 2022
Real Estate Summit
Speakers: Kimberly Whaley and Bryan Gilmartin
ILCO ANNUAL CONFERENCE
November 3, 2022
Estate Litigation
Speaker: Kimberly Whaley
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Check out our recent Feature Series which are posted on our Blog:
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VI. IN CASE YOU MISSED IT - RECENT BLOG POSTS |
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