Raczkowski-Filliter v. Raczkowski, 2022 NSSC 64

SUPREME COURT OF Nova Scotia Citation: Raczkowski-Filliter v. Raczkowski , 2022 NSSC 64 Date: 20220314 Docket: Hfx No. 482251 Registry: Halifax Between: Yvonne Raczkowski-Filliter Plaintiff v. Richard Raczkowski Defendant DECISION Judge: The Honourable Justice Christa M. Brothers Heard: January 18, 19, 20, 21, 25, 26 & 27, February 24 & 25, and March 1, 29 and 30, 2021, in Halifax, Nova Scotia Counsel: Richard Norman and Sarah Stevens, for the Plaintiff Peter Rumscheidt and Nicole Power, for the Defendant By the Court: Overview [ 1 ] There is one thing the parties agree on.

Elsie Raczkowski (who I will refer to throughout this decision as “Elsie”) was an accomplished, intelligent person who advanced through the ranks of the banking world at a time when a woman would not commonly work in such circles. She rose to head of gold trading for North America, and then worldwide at the CIBC. She was reserved, capable, and knowledgeable about her work and the world around her. She was small but mighty. As a result of her hard work and determination she amassed a fairly sizeable estate.

Two aspects of the estate are in dispute, beneficiary designations of a TFSA and RRIF, and cheques written to the defendant, her son, since 2012. [ 2 ] The plaintiff, Yvonne Raczkowski-Filliter, Elsie’s daughter, says that prior to Elsie’s death, her capacity diminished to the point that she was incapable of dealing with her finances or with day-to-day activities. She says Elsie made gifts of money and changed beneficiary designations when she lacked the capacity to make those decisions.

The defendant, Richard Raczkowski, Elsie’s son, says Elsie was capable despite her failing physical health, and that she had capacity to make the decisions in question. [ 3 ] What has been clear and consistent in the evidence are the observations of those most closely connected to Elsie, those who saw her regularly since 2012. Their evidence is in stark contrast to that of those who saw her rarely or spoke with her only once or twice a year by phone. [ 4 ] Elsie’s two children disagree on her capacity to give monies to her son, the defendant, in the years leading to her death. The

plaintiff, says these purported gifts were the product of a son taking advantage of an older parent who lacked an appreciation of what she was doing and, at worst, a parasitic act by a greedy son, whose actions allegedly included forging cheques. The defendant denies all these allegations. [ 5 ] The court is asked to look back in time and assess whether certain “gifts” from mother to adult son were valid gifts or were acts of a person who lacked capacity to give them, and whether undue influence or a lack of capacity was at play in respect of beneficiary designations.

The court is asked to make this assessment through the assessment of viva voce evidence and hundreds of pages of documents relating to financial and medical matters. Background [ 6 ] Elsie Raczkowski died on November 2, 2018, at the age of 91. She had amassed a considerable estate from her work as a banker, which saw her reach the highest level as a senior manager of gold trading. Ms. Raczkowski had two children: her daughter Yvonne Raczkowski-Filliter and her son Richard Raczkowski.

She was predeceased by her husband, Richard. [ 7 ] Upon Elsie’s death, disputes arose between the parties over several things, including beneficiary designations on her RRIF (value at her death of $206,167.00) and TFSA ($68,119.00), and cheques she had written to the defendant in the years prior to her death, including cheques written during her last illness when she was in the hospital just before her death (totalling $30,000.00).

The plaintiff alleges Elsie did not have the capacity to give gifts beginning in 2012 or change designations, and further alleges that cheques made out to the defendant just prior to Elsie’s death are forgeries. [ 8 ] The defendant resides in Toronto, and many of his witnesses also live outside of Nova Scotia. Mr. Raczkowski participated by video conference, by consent. Many of his witnesses gave evidence through Microsoft Teams or Skype, and one of the plaintiff’s witnesses testified via video.

Considering the circumstances of the Covid-19 pandemic, including lockdowns in Ontario and travel restrictions in Nova Scotia at the time, virtual testimony was necessary to conduct the trial. The only alternative would have been to postpone the trial until witnesses could travel. The parties thus agreed and asked the court to proceed by a combination of in-person and virtual means. [ 9 ] The parties submitted a four-volume Joint Exhibit Book. It became apparent at trial that there was disagreement on the admissibility of some of those documents.

By correspondence dated March 26, 2021, the parties agreed that certain documents would not be relied upon by the court. I have followed that agreement. Evidence [ 10 ] The following is a review of the evidence presented by the parties. I will not mention all of the relevant evidence but have considered it all in reaching my conclusions. During the review, I will provide some comments upon credibility and reliability which I will expand upon later in the decision. Yvonne Raczkowski-Filliter Family Background [ 11 ] The plaintiff grew up in Whitby, Ontario.

She moved to Halifax to obtain a Master’s degree in social work. She practices privately as a clinical therapist. She married Dr. Bruce Filliter in 1979. They have two children: Jillian who is 38, and Daniel, who is 36. (I will also refer to Dr. Bruce Filliter as Dr. B. Filliter or Bruce and Dr. Jillian Filliter as Dr. J. Filliter or Jillian). [ 12 ] The plaintiff said her mother Elsie started as a bank teller and worked her way up the corporate ladder to worldwide head of gold trading for CIBC. She described Elsie as an introvert who only spoke when she had something to say.

Elsie liked to read and was a homebody. She did not have a lot of friends. The plaintiff said her mother was the person she went to when she had problems, and they had complete mutual trust. [ 13 ] When speaking of her father, the plaintiff became emotional, describing him as a complex individual, good at the “big things” and a good community member, but with a “very dark side”. She described him as being emotionally abusive, with a paternalistic and misogynistic approach to both her and her mother. She said he physically abused her mother, recalling Elsie suffering bruises and hearing loss.

By the time of the events with which this decision is concerned, the plaintiff’s father was living in a seniors’ facility in Ontario. He died on March 23, 2014. [ 14 ] The plaintiff said she and her brother, the defendant, had a good relationship growing up, that she took comfort in him and followed him to the same university. Before their mother moved to Nova Scotia in 2012, they spoke once or twice a week. The plaintiff described her brother as becoming quite financially dependent on her mother, to the point that Elsie was concerned about it. Elsie purchased a home for Richard and his family.

It was a problem in the family dynamic. Elsie would say that the defendant was crying poor. Elsie’s Failing Health and Move to NS [ 15 ] The plaintiff discussed her mother's gradually failing health and inability to live on her own, culminating in her moving to Nova Scotia in 2012, after being hospitalized due to a fall. [ 16 ] The plaintiff travelled to Ontario when Elsie was hospitalized in 2012. She said Elsie was not eating and was taking too many pills for pain. She went back into hospital with dehydration and pain. She also required rehabilitation.

They had previously cared for her husband’s mother in their home, so they had a furnished bedroom and bath available. She said Elsie was not interested in a potential assisted living situation in Ontario, and they settled on her moving to Nova Scotia. The defendant advised that Elsie moving into his home was not an option.

Observations of Elsie’s Capacity [ 17 ] When Elsie arrived in 2012, the plaintiff said, it was soon apparent that she could not be at home alone. She was under-weight, and was warned about falls, but refused to use a walker at home. They put gates up to prevent her from going downstairs. They bought her a lifeline for falls, but she would forget to use it. Elsie was also confused. She would phone the plaintiff at work, asking where she was, thinking she was retired. The plaintiff’s husband and daughter reported receiving similar calls.

They put up a whiteboard to show what each of them was doing, and when they would be home. [ 18 ] The plaintiff testified that when she moved to Nova Scotia Elsie could not focus and finish tasks. For instance, she would get a bill and stuff it in a drawer. Given the issues with leaving Elsie alone, they decided to hire someone to care for her, as well as their granddaughter Alice, at their home during the day. They hired Barbara Williams, a retired social worker. The plaintiff would plan meals, spend time with Elsie at night, do the laundry, and take her to appointments.

She also did Elsie’s personal shopping. [ 19 ] The plaintiff helped sell her parents’ home in Ontario. She made two trips to prepare it for sale, including decluttering. Her parents had lived there for sixty years. She testified that her brother had already removed items, including televisions, the computer, the printer, rugs, and silverware, without Elsie’s permission. The plaintiff said she heard Elsie say to him, “Richard, I’m not dead yet, bring them back”.

While cleaning the home, she saw that her mother had been stuffing papers in drawers before she moved to Nova Scotia, including unpaid bills. [ 20 ] The proceeds of the sale of the Whitby house were deposited in Elsie’s CIBC account. The plaintiff testified that on several occasions, Elsie asked where the proceeds had gone, and she had to remind her that those funds had been deposited into the bank. Elsie continued to ruminate on this subject and make allegations.

At trial the parties filed an Agreed Statement of Facts stating that Elsie Raczkowski deposited the sale proceeds of $247,284.68, into her CIBC account on or around September 3, 2013, leaving a balance in the account of $261,460.66; that on September 27, 2013, she transferred $200,000 from the account into a GIC, where it has since remained, and which is listed on the estate inventory at $212,459.27; and that this last fact was only discovered by the administrator pending litigation on or around February 16, 2021.

Over the years leading to her death Elsie could not recall any of these details and did not recall where these sale proceeds had gone. In fact, she accused the plaintiff of knowing where the funds were which was not true. Elsie also asked Ms. Basmadjian about the location of these funds as she could not recall what happened to them. [ 21 ] The plaintiff testified that when Elsie arrived in Nova Scotia in 2012, she could not focus on completing tasks, and already required reminders and prompts. She was disorganized with regards to financial matters.

The plaintiff dealt with her paperwork, such as health cards and Sun Life statements. Elsie could not use her Visa card because she could not recall the pin number. Elsie would receive mail and stuff it in a drawer. This included stale-dated cheques. In describing her mother’s difficulty with understanding what she was doing, the plaintiff described an occasion when they were at the Superstore. While she was paying for groceries, Elsie went to the President’s Choice bank outlet in the store and opened an account, in which she deposited $30,000. She subsequently learned this was an online account only.

When Elsie received mail from President’s Choice, the plaintiff inquired about it, and Elsie accused her of meddling in her business. This occurred some six months after Elsie moved to Nova Scotia. [ 22 ] The plaintiff was appointed Elsie’s, and her father's, Power of Attorney (“POA”) in 2012. She said this was at Elsie’s request, and that Elsie told her that she did not trust Richard with money. The plaintiff used the POA on two occasions: to deposit a Department of Veterans affairs cheque into the estate account, and to cancel a Visa card.

Asked on direct examination why she did not use the POA more often, given the concerns about Elsie’s capacity, the plaintiff said, “that's a good question”, and explained that Elsie was very proud of her financial independence, and was also paranoid. The plaintiff thus decided on a gentle approach. In 2018, she asked Kanar Basmadjian, Elsie’s financial advisor in Ontario, to advise her if she saw anything untoward or concerning with regards to Elsie’s accounts.

She said she did not want to be heavy-handed, but in retrospect she felt she had been too lax and would have done things differently if she had all the information she acquired after Elsie’s death concerning the changes to the designations and the cheques. [ 23 ] The plaintiff dealt with Elsie’s needs including medication, food, clothing, gifts to the grandchildren, bills, and expenses. The plaintiff said that as her mother's memory was failing, she would forget things. As a result, starting in 2015, the plaintiff wrote things down in a book, which Elsie would sign and date, as a record of the discussion.

These notes covered subjects such as CRA matters, her deceased husband’s Will and death benefits, a safety deposit box, a Veterans’ Affairs overpayment, proceeds of the sale of the home in Whitby, stays at the Cottage and at the Sagewood facility, and similar matters. They appeared in the joint exhibit book. The memory book was used for a time, but Elsie became bored with it. [ 24 ] The plaintiff said Elsie discussed estate planning with her. Elsie told her that she had bought the defendant's home for him and that her plan was to provide the plaintiff with the Florida home to even out the estate distribution.

A copy of Elsie’s 2011 Will was placed in a safety deposit box. The plaintiff also received a copy, which she believed she received in 2015. After Elsie’s death, another will was located that the plaintiff did not know about. [ 25 ] The memory book provides evidence of the plaintiff’s concern regarding the will. She wrote in the book that the defendant had already received money from Elsie. The 2011 will indicated that the house in Whitby would go to the plaintiff but did not account for the fact that the house was sold.

The plaintiff suggested an adjustment so that she would instead receive the proceeds. [ 26 ] The plaintiff regularly attended medical appointments with Elsie, and when she did not accompany Elsie, her husband did. In 2013, they saw Dr. Janet Gordon. The plaintiff was concerned with her mother’s weight, sleep, nocturnal habits, and depression. She also had concerns about capacity issues. Dr. Michael Flynn was also seen around that time, diagnosing Elsie with mild-major depression disorder and prescribing medication. A letter from the plaintiff to Dr.

William Lee, dated December 6, 2016, set out the plaintiff’s concerns at that time: Dear Dr. Lee, My mother, Elsie Raczkowski will be coming in to see you tomorrow with myself. When you see her she minimizes things or forgets things so I am sending this along so that you are aware of her needs.

Basically, she is coming in for her flu shot and medication renewal/evaluation on Thursday. However, there are other issues I wish to bring to your attention that are difficult and somewhat sensitive to address. She has been on the list for R1-assisted living and now is at the top of the list. We must decide if she is going to accept the next opening. To that end she is going for a respite visit next week. She went to Sagewood with me about 2 months ago (after much protest). Mom liked it and did not want to leave when it was time to go. Now she must be reminded about it and is again unsure about it.

The Continuing Care Nurse (Lisa Laba) came a couple of months ago, to update her application because she is at the top of the list for Sagewood. Lisa was surprised about mom’s mental deterioration and her somewhat paranoid and abusive behavior towards me. Stating that “You need a rest from her”. Mom sees me as trying to “get rid of her” and scheming to do so. We have stated that if she does not like Sagewood she does not have to go, but she does not believe this. She also [sic] I am trying to control her finances.

Mom still manages her finances, or should I say lets others manage them (bankers) and has no interest in me helping her with that. Lisa Laba does not feel she is competent to do so. I have power of attorney when she is deemed no longer competent. Lisa Laba stated I should have her GP do a thorough functional mental exam with mom. Her short-term memory is almost gone; however, her long-term memory is beginning to get fussy as well. Could she benefit from any medication in this regard? Mom is getting up to go to the bathroom about 10 times a night, I am wondering if she has an infection or some other problem.

Mom’s eating is an issue; will you weigh her to see if she is holding her own? She won’t let us weigh her. Is there something that could stimulate her appetite? Finally, mom takes medication too often and we found her taking too much Tramacet during the night. Now we are hiding it, however, she is persistent in asking for more still. Last week she took 6 between bedtime and morning. She thinks we are overreacting, could you discuss this with her. Also, is there another medication that would help her nighttime pain better?

I realize this is too much to cover in one session, we can bring her back when convenient for you. Please do not share this with Mom. Thanks so much for your care of my mother, Yvonne Filliter [ 27 ] I am not relying on the hearsay comments for their truth or as prior consistent statements, only for the fact that these issues were being raised by the Plaintiff in 2016. [ 28 ] The plaintiff said the defendant was advised of all of Elsie’s appointments. Both she and her husband Dr. Bruce Filliter spoke to the defendant about Dr. Carver’s report. They discussed the possibility of Dr. B.

Filliter taking over Elsie’s finances, given her periodic paranoia or distrust of the plaintiff. [ 29 ] Elsie moved into Sagewood facility on March 1, 2018. According to the plaintiff, it was hard to connect with Elsie there, as she would not answer her phone, and had difficulty calling out, even with numbers programmed into her phone. Elsie also could not recall how to turn on the television at Sagewood. According to Sagewood documentation, she spent her time lying on the couch and watching television. She was very disengaged.

She had trouble picking up the phone and would hang up accidentally while answering and would have difficulty recalling numbers. This was happening early on in 2012 when she arrived in Halifax, according to the plaintiff. [ 30 ] On one occasion after moving to Sagewood, Elsie became convinced that the plaintiff had stolen money from her and wanted the police called. Elsie was convinced of this and demanded the return of the money, or she would call the police. Dr. B.

Filliter was able to convince her to wait to check her desk at their home, to see if the money was there, as they promised it was. (They had taken the money home, as cash was not allowed in the facility.) There was another incident when Elsie wanted to go to the bank because she thought her taxes were due, and she claimed her daughter had her chequebook. She was confused about this.

The entry in the Sagewood notes says: Resident came out of room and asked writer if she was able to go out to the bank as her taxes are due and her daughter has her chequebook, writer said “There is nobody around at this time to ask but will let the Rn know so she can find out” Resident was okay with that and is in bed sleeping. Rn notified and aware. [ 31 ] This was not correct, as Ann Sutherland, an accountant, dealt with her taxes.

Such incidents illustrate the disorientation described by the plaintiff. [ 32 ] Elsie fell at Sagewood in the Spring of 2018, and, again in September 2018, when she broke her kneecap. In October 2018, she shattered her hip in a fall, and was admitted to hospital on October 22, 2018. She had also developed a cancerous growth on her neck, which, by this time, was the size of a grapefruit or orange. The defendant came to Nova Scotia, and the plaintiff said he was present to hear the doctors say that Elsie’s hip could not be fixed, and that the goal was to keep her comfortable. Elsie was on morphine and fentanyl.

Her last clear remark was that her body was her cage. After that, she could whisper, but real conversation was not possible. Elsie would forget about her cancer diagnosis and her fractured hip. Questions surrounding Elsie’s Capacity [ 33 ] Various documents were put to the plaintiff on cross-examination to demonstrate that Elsie was signing consents in the years leading up to 2018. These included the following: 1. Capital District Health Authority Consent to Routine Assessment and Treatment, April 12, 2013.

2. Consent to Release Taxpayer Information, March 8, 2013. 3. Application for Continuing Care (Long Term Care) Consent for Financial Information, March 8, 2013. 4. Consent for Investigation, Treatment or Operative Procedure, May 10, 2013. 5. Personal Directive appointing the Plaintiff to make decisions if Elsie was not capable. The defendant was named as an alternative, May 21, 2013. 6. CIBC Wood Gundy RESP Withdrawal Form for grandson (Defendant’s son) Gregory, January 5, 2014. 7.

Affidavit of Elsie in relation to the 2014 Will involving Mark Woitzik. [As noted earlier, an Agreed Statement of Facts notes this as signed May 16, 2014, not the date on the document itself, February 6, 2014. 8. Application for CIBC Wood Gundy Self-Directed Retirement Income Fund, May 17, 2014. 9. CIBC Wood Gundy Self-Directed Tax-Free Savings Account (TFSA) Application Form, May 17, 2014. 10. CIBC Know Your Client Form, May 17, 2014. 11. Consent for Assessment, Service Referral and To Obtain and Share Information, February 19, 2015. 12.

Letter of Understanding Long Term Care Facility Respite, February 19, 2015. 13. Letter of Authorization to CIBC World Markets Inc. authorizing them to provide tax related info to Sutherland Watt Chartered Accountants, April 8, 2016. 14. Income Tax Return for Electronic Filing of Individual’s Income Tax and Benefit Return - April 11, 2017. 15. Letter o Understanding Long-Term Care Facility Respite, August 9, 2016, and July 21, 2017. 16. Consent for Assessment Service Referral and to Obtain and Share Information, June 21, 2017. 17. Medical Advanced Directive for Treatment, March 1, 2018. 18.

Rosecrest Communities Consent for Care and Media Release Forms, March 1, 2018. 19. CIBC Client Profile, August 3, 2018. 20. Consent for Investigation, Treatment Operative Procedure, October 2018. 21. Letter to Mr. Schilling to obtain the Will, March 12, 2015. [ 34 ] While all of these documents were signed by Elsie, the medical consents and documents were signed in the presence of the plaintiff or her husband, one of whom, the plaintiff said, attended all of her medical appointments. Similarly, tax documents were signed in their presence, or with Elsie’s accountant.

Given this and the corroborated descriptions of Elsie’s decline, I do not find these consents persuasive as showing Elsie maintained capacity throughout. [ 35 ] In the daily care records from Sagewood, an entry for October 16, 2018, stated that Elsie was oriented to person, place, and time. A box labelled “cognitively impaired” was not checked. The plaintiff maintained on cross-examination that this did not reflect the level of Elsie’s understanding at the time. Similarly, an Interdisciplinary Progress Note from Sagewood dated August 16, 2018, stated, “good appetite – feeling well; cognitively sharp”.

The plaintiff explained that Elsie may have been sharp at that moment, but on other days she was wandering the ward looking for pills. Similarly, basic care flow records of the Department of Orthopaedic Surgery between October 23 and 26, 2018, when she was in hospital, described her as alert and oriented. None of these notes have a check on the box next to “confused.” To the extent that these records are offered as a medical opinion without direct evidence, they cannot be relied upon for the truth of their contents. [ 36 ] A Physical Self- Maintenance Scale was done with Dr.

Nemiroff on June 7, 2017, with which the plaintiff assumed she assisted, but did not have a clear memory. While this assessment noted that Elsie could toilet, eat, bathe, dress, and ambulate for herself with some assistance, it also noted that she could not dial the telephone, nor could she shop, travel, do household tasks or laundry, or dispense her own medication. While this assessment indicated that Elsie was interested in and could manage her finances, it does not indicate that she received assistance with cheques, that she did not file her own taxes, and that a banker in Toronto was assisting her.

The Two Wills [ 37 ] As noted earlier, the plaintiff was aware that Elsie had prepared a Will in 2011, and they later discussed possible changes to it, in view of changed circumstances such as the disposal of property in Ontario. The parties agreed to the admission of a letter of April 2, 2019, from Nigel Schilling Q.C., as he has since passed away. The letter addresses the preparation of Elsie’s 2011 Will. The parties agreed, and I accept, that it was necessary and had threshold reliability. Mr. Schilling had been a social acquaintance (initially through

his father-in-law) of Elsie and her husband since the 1960s, and practiced law in Whitby for several decades. The letter states, in part: I was called to the bar in 1969 and thereafter had my offices in Whitby. I have no recollection of acting for Elsie and/or Rick prior to the year 2000, but I did see and communicate with them from time to time in the 1970’s and 80’s when visiting with my in-laws. My father-in-law died in 1987 and from then on until 2000, I may have had one or two telephone conversations with Rick a year.

I distinctly recall on one occasion, I think in the early 90’s, that Rick expressed concern about his son Richard’s ability to make a decent living. He told me that his son practised criminal law in Toronto. I advised him that in all likelihood, much of his son’s practice was on Legal Aid, and that unless he maintained minimal staff, kept meticulous track of his hours, billed Legal Aid diligently, and consolidated court appearances, it would be hard to make a decent living. I also told him that you had to get money from paying clients up front or risk working pro-bono.

When I received instructions in July of 2000 from both Rick and Elsie for their Wills and Powers of Attorney, it became known to me that they had bought a house in Toronto sometime prior thereto to provide a home for Richard and his family to reside in. You will see from my notes dated July 18, 2000, that specific bequests were made by Rick and Elsie of various real and other property. They expressed to me that notwithstanding their daughter Yvonne had married well, they wished to leave both of their children with equal inheritances as possible.

Elsie, being the asset manager in her marriage, provided me with the details regarding the payment of capital gains, etc., detailed in my notes. You will see from my notes dated March 30, 2009, that I received instructions to update their Wills to reflect certain changes such as the Toronto house having been transferred to Richard and the Florida property sold. Again, I was told that they wanted to treat their son and daughter equally. The instructions were given to me by Elsie, but I reviewed the contents of Rick’s Will with him before he executed it.

Rick subsequently died and Elsie gave me instructions for her new Will which she executed on June 27, 2011. Again, although she believed that Yvonne was better off than Richard, she wished to treat them equally. Sometime thereafter, I was advised that that Whitby house had been sold and Elsie had moved to N.S. to live with Yvonne. I was next contacted by Yvonne by e-mail in March of 2015. As a result of that contact, I corresponded with and had two telephone calls with Elsie regarding Rick’s estate and the transfer of her Will and Power of Attorney to her.

I advised her that although I was certain her Will would be accepted in N.S., I was not sure of the Net Family Property clause in the Will and the form of the Continuing Power of Attorney. I suggested to her by phone and in my letter of March 16, 2015, that she seek to have them reviewed by a lawyer in N.S. Elsie did not advise me that she had made a new Will, either in her correspondence or our telephone conversations. On the contrary, she spoke of her June 27, 2011, Will as being her Last Will and Testament. [ 38 ] Mr.

Schilling’s evidence supports the claim that Elsie said she wanted to treat her children equally in her Will. The letter supports the plaintiff’s testimony as to what she believed her mother’s intentions were. The letter also raises questions about the 2014 Will and these circumstances. [ 39 ] The defendant sent the plaintiff another Will in Elsie’s name on November 9, 2018, a week after Elsie died. This new Will had been executed in Ontario on May 16, 2014. At that time, Elsie and the plaintiff were in Ontario after the plaintiff’s father’s death. The Will was witnessed by a lawyer, Mark Woitzik.

The plaintiff said she had been unaware that Elsie saw a lawyer and executed a new Will at that time, and specifically denied visiting any lawyers with her mother while they were there. (She said there was at least one time when Elsie was with the defendant without her during this trip.) [ 40 ] The plaintiff noted several concerns with the 2014 Will, including reference to a religious ceremony despite Elsie’s atheism, and a new distribution of various mementos entirely to the defendant, rather than shared between them.

In order to ascertain the origins of the new Will, the plaintiff filed an application to obtain Mr. Woitzik’s and Mr. Schilling’s files on January 9, 2019. An email purporting to be from Elsie to Mr. Woitzik, from a Gmail account in the name “elsieracz” of which the plaintiff was previously unaware, appeared in Mr. Woitzik’s file. The email, headed “Appointment on May 16, 2014” and dated April 23, 2014, states: As you know I will be attending at your office on the above noted date. Since I am coming from Halifax I would like to complete a number of tasks on that date. I would like my husband’s will probated.

My son has copies of my husband’s death certificate and I have asked him to send you one. Since my husband has passed away I would like to redraft my own will. Essentially I would like to split my estate 50/50 between my two children, Richard Raczkowski and Yvonne Rackowski-Filliter, which my daughter receiving $250,000 beyond the 50/50 split since I have given a house to my son previously. I would like my son Richard appointed as executor since he is a lawyer and he resides in Ontario.

I would also like you to deal with my son Richard to iron out the details of my husband’s probate and my new will since I am now residing in Halifax. Would it be possible for you to have all the necessary documentation for my signature on May 16? On May 16 I would also like to sign the documents in private with you in the absence of my children when I visit you so there are no awkward moments and I would appreciate it if you could suggest this to my children without my having to mention it. If witnesses are necessary perhaps you or your staff could fill in.

If you wish to contact my son you can do this at his work [redacted] or email at [redacted Gmail for Richard].

Thank you for your assistance. Elsie Raczkowski [ 41 ] The plaintiff did not think this email came from her mother, for several reasons, including the secrecy. It did not come from an email address she recognized. She said the tone was very casual for Elsie. There is no reference to the $100,000 proceeds from the sale of the Florida home. She questioned the intention to name the defendant as sole executor when Elsie herself had told her she did not trust him with money.

Further, she did not understand why Elsie would execute a new Will in Ontario rather than go to a lawyer in Nova Scotia. [ 42 ] In an attempt to ascertain the source of the e-mail to Mr. Woitzik, the plaintiff brought an application in June 2019 to determine the source of the previously unknown Gmail address, with Google named as the respondent. The evidence from the plaintiff and witnesses called in support of her action was that none of them ever received emails from Elsie.

The information produced as a result established that the new Gmail address was created in the City of Toronto, at a time when Elsie was not in the city. The recovery email and phone number were associated with the defendant’s wife, Nancy Raczkowski. During the production application, the defendant denied any knowledge about the Gmail address. However, in view of expert evidence linking the IP address of the account to his employment address in Toronto, he acknowledged on discovery in October 2020 that he created the account.

He subsequently withdrew his Notice of Objection to the 2011 Will and an order issued on February 11, 2020, confirming the 2011 Will. On cross-examination, the plaintiff agreed that the 2014 Will was more beneficial to her, leaving her with a cash payment of $250,000 before the equal division of the estate, while the 2011 Will gave her $100,000. [ 43 ] The plaintiff was unaware of the TFSA or the RRIF accounts until after Elsie’s death. Like the second Will, these were executed May 17, 2014, while the plaintiff and Elsie were in Ontario after the plaintiff’s father died.

These showed a 50/50 designation between the plaintiff and defendant. Elsie ostensibly signed new beneficiary designations on August 3, 2018, while living at Sagewood. These were signed in turn by her advisor Ms. Basmadjian in Ontario on August 15, by another investment advisor on August 16, and by the branch manager on August 20. The defendant was in Nova Scotia in August 2018 with his two children, spending much of their time at the plaintiff’s cottage, and some time with Elsie.

Allegations of Undue Influence [ 44 ] The plaintiff testified that the defendant would call Elsie five days a week, on weekdays when the plaintiff and her husband were working, but not on weekends. She said she overheard one conversation when the defendant was asking for money from his mother for his son’s education. Greg was in or was applying to medical school. Elsie was upset about this. She felt her brother was coercing her mother. She testified her mother was vulnerable as a victim of domestic violence at the hands of her husband.

She said her brother would garner sympathy from Elsie, and when that would not work, he would get angry with her. The plaintiff testified the defendant would “cry poor”. He would also foster distrust accusing the plaintiff of listening in on phone calls and reading Elsie’s mail, both of which she denied. The plaintiff says these accusations alienated her and put the defendant in a position of influence over Elsie. The plaintiff testified that some of the cheques she refers to in the spreadsheet are evidence of the defendant’s undue influence over Elsie.

Allegations of Forged and Suspicious Cheques [ 45 ] The plaintiff said the defendant stayed in Nova Scotia from October 23 to 27, 2018, at her home. The plaintiff testified that neither Elsie nor the defendant said anything about cheques during this time. When Elsie entered the hospital, she had her purse, but Dr. Jillian Filliter, the plaintiff’s daughter, took it home when the hospital advised she could not have it there. The defendant told the plaintiff Elsie had asked for her purse, but Elsie did not respond when the plaintiff asked what she wanted it for.

The next day the plaintiff arrived at the hospital and the defendant was to drive to their home and eat supper with Dr. B. Filliter. The defendant had use of the plaintiff’s car. The plaintiff said he was unusually late arriving back from the hospital which was about five kilometres away and that he never arrived for supper. He was also not answering his phone. When he did arrive, he said he had gotten lost, ended up in Sackville, and had to stop at Sagewood to charge his phone. In the meantime, the plaintiff received a call from the defendant’s wife Nancy, saying he was fine and was on his way home.

The defendant’s explanation for this event will be discussed later. Put simply, he said he was lost on the way to the plaintiff’s home and came upon Sagewood where he charged his phone battery. This was strange because Sagewood is a great distance from the plaintiff’s home. [ 46 ] While the defendant was staying in Nova Scotia, the plaintiff said, he complained that she was going to get Elsie’s jewelry, while he got his father’s “junk.” The plaintiff decided not to talk to him about this. She asked him if he would stay in Nova Scotia longer as Elsie needed them. He said he needed his family and was going home.

The plaintiff asked if he could bring Nancy, his wife to Nova Scotia and he responded that he was not “rich” like the plaintiff, was in debt “up to his eyeballs”, and was “not married to a rich doctor”. [ 47 ] The plaintiff testified she had concerns about various cheques made out to the defendant just before Elsie’s death. The cheques that the plaintiff claims are forgeries were ostensibly signed on October 2018. The plaintiff created a spreadsheet of cheques she had concerns about. The spreadsheet reads as follows: CIBC Wood Gundy Account **00330 Chq Image is with Stmt?

Date Written Date Cleared Chq # Amount Notes

2012-04-29 _/09/2012 173 5,000.00 McMaster University – cashed in September 2012 2013-04-11 256 5,200.00 2013-05-07 209 7,000.00 2013-07-02 143 10,000.00 2013-10-01 4,000.00 Wire transfer? 2013-11-17 2013-11-26 148 3,000.00 2013-12-18 152 5,000.00 not dated _/03/2014 230 3,000.00 Cheque is not dated _04/2014 229 2,000.00 Find date 2014-01-23 228 5,000.00 2014-06-12 153 10,000.00 2014-11-24 259 20,000.00 2014-08-24 158 20,000.00 double-cheque this date 2015-03-02 260 25,000.00 2015-03-24 576 25,000.00 2015-07-02 505 25,000.00 2015-09-17 554 12,000.00 2016-02-16 433 4,000.00 2016-04-26 439 1,000.00 May 2016-06-06 441 5,000.00 2016-08-24 572 500.00 2016-08-24 573 1,500.00 2016-08-29 574 500.00 2017-01-03 403 2,000.00 2017-02-14 408 2,000.00 2017-04-05 412 1,500.00 2018-01-02 494 4,000.00 2018-02-12 497 1,000.00 cannot find on scanned cheques 2018-02-23 498 1,500.00 2018-10-29 538 5,000.00 2018-10-29 535 5,000.00 2018-10-30 533 5,000.00 2018-11-01 539 15,000.00 240,700.00 Total CIBC Wood Gundy Account **00330 [ 48 ] The plaintiff agreed that cheque number 497 should not be included on this list.

The plaintiff said she did not include any cheques that she believed were birthday or Christmas gifts. The plaintiff gave her view that cheques written to her, her husband, CRA, and Sagewood were for reimbursement of expenses. [ 49 ] Elsie wrote a cheque to the plaintiff on September 1, 2014, for $30,000.00, because the Plaintiff and her husband were subsidizing the costs of her care. Initially, she paid $1,000.00 a month. Cheques were signed by Elsie and given to Dr. B. Filliter. In 2015, the amount increased to $2,000.00 a month. Around the time there was a discussion about funds being sent to the defendant.

Elsie did the math, calculating the shortfall between what she was paying and the cost of the caretaker – Barbara Williams. Consequently, she signed a cheque for $30,000.00. As of 2014, she could do that calculation. Another cheque to the plaintiff, on August 14, 2013, for $5,000, was for costs related to a cardiac evaluation, which required a two-week hotel stay, and travel costs.

On cross- examination, the plaintiff was referred to a cheque dated November 4, 2014, made out to her son, Daniel Filliter, in the amount of $5,000; a June 15, 2015, cheque to her daughter Jillian Filliter, in the amount of $1,000.00; and one for $500.00 to her daughter and son- in-law, dated December 22, 2017. With respect to the cheque to Daniel, she said she did not know about this cheque until later and explained that Elsie was trying to help Daniel after his home was flooded. [ 50 ] There is some difference in the approach to the cheques to the plaintiff and her children versus those to the defendant.

However, the majority of these were written before the visit with Dr. Carver and the resultant diagnosis of dementia. There is no question Elsie had a pattern of giving various people gifts by cheques for certain occasions. The issue raised by the plaintiff is in relation to the volume and amounts of cheques written to the defendant for no apparent special reason. [ 51 ] The plaintiff testified that in the summer of 2018 she asked Ms. Basmadjian to alert her about any activity of concern in Elsie’s accounts, in view of Elsie’s diminished capacity, and she thought that Ms. Basmadjian had agreed to this.

On September 4, 2018, she wrote to Ms. Basmadjian detailing Elsie’s situation and condition, and attaching a copy of the Power of Attorney. She wrote: Dear Kanar, Further to our conversation this summer I am sending you the “Continuing Power of Attorney” that mom did with her lawyer in 2011. Also enclosed is the Geriatric Assessment done in 2017. I do note on reviewing this that a new assessment is needed according to Dr. Carver. I will be making that apt. directly for her.

Also I wish to mention a couple of things: 1. On page 3 of the assessment, paragraph 5: it was not her daughter in law, who lives in Ontario doing her tax returns. It was my husband’s ex sister-in-law that does her and our taxes. She is a chartered accountant, and I believe you have some contact with her. Her name is Ann Sutherland. 2. Mom is now down to 67 pounds with all her cloths [ sic: clothes? ] on, and she believes she has no weight issue. Richard was here last week, and we are both very concerned about her weight.

I have met with her doctor and her caregivers, and we are doing all we can to get to the root cause of this. 3. Mom has not allowed us to have any role in her financial affairs as recommended. We have not pushed the issue. At times she will discuss things with Bruce. She is very proud and gets very angry at any suggestion that we play any oversight role. 4. I have not ever borrowed or asked mom for any monies, as I am sure records would confirm, however she at times has been paranoid that I may be taking money from her. This is when she forgets what she has done with money.

One such time was when the house was sold in Ont. And she forgot what she did with the cheque from that. I recalled to her that we deposited it directly and that she consulted with you what to do. She needed several reminding of this before she would let it go. I think at that time I asked you to phone her to reassure her, and I believe you did because she stopped talking about it. 5. I was made “Continuing Power of Attorney”, because both mom and dad did not want Richard to handle the finances as he has often asked for money from them, and he is not a good financial planner.

They did not believe he could handle this responsibility appropriately. I have attached also Dad’s “Power of Attorney” so that you can see that his wishes were the same as mom’s at the time. Please give me a call if you have further information about this situation that I should know as the Power of Attorney for my mother. Thanks so much for your concern and attention to our mother. Yvonne Raczkowski [address] For your information only. Not to be shared. YR [in handwriting] [ 52 ] The plaintiff was referred in cross-examination to a notation by Ms.

Basmadjian on July 6, 2018, after a phone call about Elsie’s finances, describing her as “physically frail … but mentally sound.” As will be discussed in more detail later, Ms. Basmadjian had no expertise in capacity evaluations, let alone any regular contact with Elsie. [ 53 ] Elsie’s Estate Inventory was sworn August 26, 2020. It lists a total value of $1,867,561.54, not including the RRIF and TFSA. In 2018, the value of the TFSA was $68,119.00, and the RIF was worth $206,167.00.

The plaintiff had no direct knowledge of the defendant being involved with the designations. [ 54 ] The plaintiff testified in a forthright manner. She gave reliable evidence, and it was clear the high regard she held their mother in. She was not impeached on her evidence in any way that would impact my assessment of her credibility and reliability. Here evidence is corroborated in large measure by with witnesses who had ongoing, frequent interaction with Elsie. I accept her evidence and her observations of her mother’s declining mental capacity over time. Dr. Bruce Filliter [ 55 ] Dr.

Bruce Filliter practiced primarily as a family doctor in Springhill, Nova Scotia, from 1976 to 1998, and in Dartmouth from 1998 to 2015, when he retired. He and the plaintiff were married in 1979. Observations of Elsie over the years [ 56 ] Dr. B. Filliter had known Elsie since 1976. He described her as intelligent, having worked as an international gold trader, and among the top 20 executives at CIBC, a career she was proud of. He described her as reserved and quiet. Before she moved in with Dr. B. Filliter and the plaintiff, they spoke every week and saw each other in the summers and the winter. [ 57 ] Dr. B.

Filliter said that after Elsie came to live with himself and the plaintiff, he was intent on providing her a good life. She initially moved in on a trial basis, and after a year, she advised them that she wanted to stay. [ 58 ] In 2012, Dr. B. Filliter recalled, he suspected cognitive issues with Elsie, but he was not sure whether it was related to depression, medication, or something else. He recalled that from 2012, Elsie would forget when the plaintiff was coming home from work. Elsie would also move her medication or would forget she had taken it.

They put her pills in blister packs, but Elsie would still forget to take them. Additionally, Elsie would move around the home without a mind to her brittle bones. She was frail and unstable on her feet. She would leave the gates open. [ 59 ] Dr. B. Filliter said that when she arrived in 2012, Elsie could be left alone for short periods. Once Barbara Williams was hired, Elsie was left alone rarely, and only during shift changes where Ms. Williams would leave at 5:00 p.m. and someone would arrive home five or ten minutes later. From 2012 until 2018, Dr. B.

Filliter said, he saw a deterioration in her memory, particularly her short-term memory. He said that Elsie would have a good breakfast, but the rest of the day would not willingly eat. [ 60 ] Dr. B. Filliter spoke about providing the accountant Anne Sutherland with Elsie’s tax information, and about taking her to see Ms. Sutherland to have taxes prepared and paid. He would help Elsie gather her papers because she did not keep them organized. He

recounted a discussion with Elsie about estate planning in 2010. She said the estate would be split 50/50 between her children. She was going to give the plaintiff the house in Florida and the proceeds of the house sale in Whitby, Ontario, because she had paid for the defendant’s home in Toronto . [ 61 ] Dr. B. Filliter said Elsie would mention the defendant's children, but would get information mixed up; for example, she often told people that the defendant’s son Gregory was in medicine when he was not. However, she did know that the grandchildren were in university. [ 62 ] As a family doctor, Dr. B.

Filliter said he knew what to expect regarding Alzheimer's and dementia, but Elsie’s paranoia focussed on the plaintiff, which he said appeared in 2016-2017, was difficult to deal with. He described Elsie as becoming almost like a child, and taking out her frustrations on the plaintiff, and making accusations, such as the claim that the plaintiff had taken the proceeds of the Ontario home sale. [ 63 ] Initially, when Elsie came to Nova Scotia, she insisted on paying $1000 per month to stay with them. At first, they told her not to pay them, but she insisted. Around September 2014, Dr. B.

Filliter said she increased this to $2000 per month. As time went on, Elsie found it difficult to write the cheques and Dr. B. Filliter would help write out the information and she would sign them. [ 64 ] Dr. B. Filliter said he saw a gradual deterioration of Elsie’s memory. For instance, she would write a rent cheque, forget she had done so, and write another one. Elsie would not recall that Dr. B. Filliter had surgery or that he retired. This was happening by around 2015. He said she would get her mind on a topic and continually repeat herself.

Interaction with the Defendant and his Opportunity for Observations [ 65 ] After 2014, Elsie never traveled back to Toronto, and the defendant did not visit her until after his father passed away. After that, the defendant visited twice a year. In 2016, he asked Dr. B. Filliter to pick him up in Moncton because it was cheaper to fly there. He said Elsie described the defendant as smart but said that he pretended to be poor. She thought he could do better, but said he was lazy and greedy. [ 66 ] Dr. B.

Filliter said he would have spoken to the defendant about Elsie's health and would have told him some of the things she was doing. She would get up in the middle of the night looking for pills, for instance. Over time, they would leave notes for Elsie to remind her where they had gone and when they would be back. [ 67 ] Dr. B. Filliter did not recall Elsie ever phoning anyone, only receiving calls. He said she often got phone numbers wrong. Dr. B. Filliter testified that he felt that Elsie lived in the past. He would find her detective shows on BBC channels.

She would not recall earlier episodes so would re-watch them. Elsie obtained a computer in 2013, but Dr. B. Filliter could not recall her using it without someone else setting it up for her. He said he never received emails or other electronic communications from her. Knar Basmadjian [ 68 ] Dr. B. Filliter recalled Elsie talking with her investment advisor Ms. Basmadjian. He did not hear Elsie providing instructions, only chatting about people they knew. He said that when Elsie went into Sagewood, he advised Ms.

Basmadjian that she had been diagnosed with dementia and inquired whether a risk update was appropriate. He asked her to contact him with any concerns. This was probably in May or June 2018. [ 69 ] When Elsie died, Dr. B. Filliter contacted Ms. Basmadjian to inform her. He said Ms. Basmadjian was emotional during this call. It was at this time that she inquired about several cheques written on Elsie’s account the previous week. Dr. B. Filliter reviewed an email from Ms.

Basmadjian dated Tuesday, November 6, 2018: Yvonne, Bruce … my deepest sympathies… Elsie was a great friend… we will miss her… Bruce, as discussed this morning, Richard is the beneficiary of Elsie’s RIF and TFSA… and we’ve included instructions/forms for him. I have notified internally and the accounts have been appropriately coded. For now, the documentations that we will need are the following: 1. Original or True Certified Death Certificate For Elsie Raczkowski Triple A/Investment Account: 500-21036-29 (non-registered account). 2. If the account is being liquidated and disbursed. 3.

Original or notarized copy of the probated will. 4. Original or notarized copy of Proof of Death. 5. Letter of Direction from the Estate Representative(

s) stamped Signature Guaranteed/Verified. Richard will need to do: 6. Letter of Indemnity for accounts 55310284 (RIF), and 69034211 (TFSA) 7. Complete the 2 nd page of RS/RIF Letter of Indemnity and add Letter of Authorization

[ 70 ] Dr. B. Filliter said he had not been aware that Elsie had a TFSA or RIF accounts. Cheques [ 71 ] Dr. B. Filliter testified that in 2012 Elsie wrote five or six cheques for the defendant and he mailed them. He could see through the envelopes that they were cheques. On one occasion in 2012 or 2013, there was some blood on the envelope, and his secretary opened it to put the contents in a clean envelope. Elsie never asked him to mail another cheque after this. In 2013, Barbara Williams told him that Elsie had asked her to mail cheques. Dr. B.

Filliter decided that if Elsie wanted to give the defendant cheques at that point it was not worth confronting her. He said the defendant called Elsie every day, usually before the plaintiff would get home at 5:30 p.m., and Elsie would go to the bathroom or bedroom to speak to him in private. She occasionally made comments to the effect that the defendant was crying poor or pretending to be poor. [ 72 ] Dr. B. Filliter recalled the defendant's last visit before Elsie went into the hospital, in the summer of 2018. He said the defendant spent about 20 minutes alone with Elsie, and Dr. B.

Filliter was not sure whether he saw her again during that visit. He said the defendant returned in October for four days, during the 12 days she was in the hospital before she died. She was heavily sedated at this time, was sleeping a lot, and was having great difficulty speaking. The defendant stayed with Dr. B. Filliter and the plaintiff. Dr. B. Filliter testified that Elsie did not speak to him about any cheques prepared while she was in hospital. [ 73 ] Dr. B. Filliter was very earnest in his testimony.

He cared for Elsie and was able to give vivid descriptions of her and his observations of her declining health from 2012 onward. I found his evidence credible. He was never successfully challenged on cross- examination. His evidence supports a finding that Elsie experienced a decline in her mental capacity likely beginning in 2015 and maybe even before. This witness had good recall of events and clear observations and examples of decline. Dr. Jillian Filliter [ 74 ] Dr. J. Filliter is the daughter of the plaintiff and Dr. B. Filliter. She resided with them until November 2016.

She is an assistant professor at Dalhousie University and a clinical psychologist at the IWK. She described her maternal grandmother as an accomplished individual who served at a high level on Bay Street at a time when women were not in such positions. Dr. J. Filliter described Elsie as a reserved, quiet, and thoughtful person, and the strong silent type. She noted that Elsie would share with her that she did not believe in God but was an atheist. This evidence impacts my assessment of the relevance of the 2014 Will. [ 75 ] From the time Elsie moved to Halifax in 2012 until Dr. J.

Filliter moved out in 2016, she said, she saw Elsie almost daily and at least three to four times a week. She and her husband lived at the plaintiff’s home between September and November 2016 and saw her every day at that time. They then moved to Halifax and would be at the plaintiff's home twice a week. [ 76 ] Dr. J. Filliter testified that her parents did much of the caregiving for Elsie. They hired Ms. Williams after her daughter Alice was born, to look after both Alice and Elsie during the day.

If the plaintiff and her husband were away, family members would stay with Elsie, including her and her husband Anthony, as well as Esther MacEachern and her brother Daniel Filliter. They agreed that it was not safe for Elsie to stay by herself. Falls were a concern. Elsie had osteoporosis and had suffered numerous breaks. She could not administer her own pills properly, needing to be reminded and given the exact medication. She had blister packs for medication but could not manage them independently. She would sometimes forget taking medication 15 minutes earlier.

Elsie had little ability to prepare her own food and had to be reminded to eat. She became underweight and increasingly frail. Elsie did not have insight into what she could and could not do physically; she would climb up on stools to get extra pills and would try to go downstairs despite her difficulty doing so. She said Elsie never left the home independently and had limited stamina when she did go out. She did not go outside much, even having to be cajoled to go out on the deck. Many of these observations were present in 2012, but they grew more serious over time. [ 77 ] Dr. J.

Filliter said she observed a decline in Elsie’s memory after 2012, first with respect to the present time, and later with regards to the past. She would forget about her granddaughter’s studies and career, despite frequent conversations, and would also sometimes forget the specifics of Dr. J. Filliter’s husband’s work beyond that he was in the car business. When there were guests for meals, Elsie would repeatedly ask who was coming over. By the time of her death, her memory was very poor.

After her cancer diagnosis they would have to have multiple conversations reminding her of the type of cancer she had and the treatment plan. She continued to do crossword puzzles and sudokus but was less likely to finish them and needed more help. [ 78 ] Dr. J. Filliter said that when Elsie moved to Nova Scotia her mood was low. She seemed “down” and would discuss morbid topics. She was regularly critical of the plaintiff, her daughter. She said the plaintiff and her mother were close. She recalled “women's club” meetings with her mother and Elsie.

Once Elsie moved to Nova Scotia, however, the roles of mother and daughter were reversed, and Elsie seemed to resent this. She was no longer independent, and the relationship suffered. Dr. J. Filliter observed that her grandmother became hostile towards the plaintiff, complaining that she was controlling, for instance when the plaintiff would point out that she had not eaten much, or that she had fed the dog her supper. Dr. J. Filliter observed that Elsie and her father got along well. Her father doted on Elsie. She likened her mother to the bad cop and her father to the good cop. [ 79 ] Dr. J.

Filliter became emotional when describing the relationship between Elsie and her daughter Alice. She generally avoided leaving Alice alone with Elsie, though there were occasions when Alice was one to two years old when Ms. Williams had to leave 15 minutes before the plaintiff, or her husband arrived. If that happened, Ms. Williams would make sure that both Alice and Elsie were in the TV room with the door closed and that Alice was safe. [ 80 ] Dr. J. Filliter said she stayed with Elsie four or five times when her parents were away, and two or three times when Elsie did not want to go to the cottage.

In March 2018, she stayed with Elsie for a week. On two occasions during that time, she was woken up by hearing Elsie climbing up on a stool to get pills in the middle of the night. The pills were later found in Elsie’s room. She said Elsie became frustrated with her. While describing this situation Dr. J. Filliter became emotional and said she understood at that point what her mother had been going through, and the level of care her grandmother needed. [ 81 ] When Elsie moved into Sagewood in the Spring of 2018, she wanted a TV and a computer. Dr. J.

Filliter and her husband, Anthony, made several visits to set up those devices, though Elsie had little ability to use them. During the summer of 2018, Elsie was

increasingly frail. She also developed a growth in her neck, which grew rapidly, which she described as the size of a plum or an orange. After she fell and broke her pelvis and went into the hospital before she died, it was difficult to converse with Elsie. The neck tumor was pressing on her airway, and she did not have full use of her voice. She was on strong medication and forgot a lot, including that she had cancer. [ 82 ] Elsie had been able to use a computer, but this ability declined substantially by the time she moved to Nova Scotia.

They obtained a computer for her in 2014 and set up Gmail and Facebook accounts for her, though Dr. J. Filliter was not aware whether Elsie ever used the email. She rarely saw Elsie use the laptop, and she needed assistance with passwords, which were all set as the same, as Elsie could not recall multiple passwords. She also noticed comments by Elsie on Facebook with capitalization and spelling mistakes, which she said was unusual for Elsie. It was only after Elsie died that Dr. J. Filliter became aware that she apparently had a second email address, “elsieracz”.

This was not the account that she set up for Elsie. [ 83 ] Dr. J. Filliter did not recall Elsie making phone calls, but did recall her receiving calls from the defendant, usually taking them in her bedroom. Dr. J. Filliter recalled one occasion in 2017, when her parents were on vacation, when she was sitting next to Elsie while she spoke to the defendant, Elsie retrieved her credit card and read the numbers to him. [ 84 ] Dr. J. Filliter brought Elsie’s purse home from the hospital to ensure that her personal effects were safe.

She did not witness much conversation between the defendant and her grandmother in the hospital. She had heard Elsie talk about being proud that the defendant was a lawyer. Elsie occasionally spoke about upcoming visits by the defendant, and would mention paying the expenses, in a grumbling manner while rolling her eyes. Elsie would make offhand comments to the effect that Richard’s visit would cost her. [ 85 ] Dr. J. Filliter testified in a straightforward manner, easily responding to questions in direct and cross examination. None of her observations were impeached.

She presented as a truthful witness whose observations were similarly confirmed by many witnesses, including those not related to the family. Her testimony supports that Elsie experienced a decline in her capacity over time. Barbara Williams [ 86 ] Barbara Williams is a retired Nova Scotia social worker and supervisor who worked for 38 years in child protection and child welfare. She was hired by the plaintiff and her daughter, Dr. J. Filliter, to look after Alice, the plaintiff’s granddaughter, and Elsie, when Elsie moved to Nova Scotia in 2012.

Her job was to make sure Elsie had her meals and took her pills in the morning. Initially, she was employed for three afternoons a week, later for eight or nine hours a day. She was employed from October 2012 until December 2015. After that, she returned on occasion to help when the plaintiff and her husband were away. [ 87 ] Ms. Williams said Elsie did her own personal care at first, including baths. Initially, she did not need reminding to take her medication, but this changed as time went on. On a typical day, Elsie would get up, bathe, dress, and have breakfast.

She would work on crossword puzzles and watch the news. She would have lunch and continue watching television. She spent a lot of time with Alice. [ 88 ] Ms. Williams said Elsie would tell her that her son was asking for money. She recalled telephone calls to Elsie from the defendant, and several times Elsie mentioned him requesting money. On one occasion, Elsie told her it was for the defendant’s son, Geoffrey’s education, but usually she did not say what the money was for. Elsie sometimes said she wished the defendant managed his money better. [ 89 ] Initially, Ms.

Williams’s impression was that Elsie’s memory seemed fine, but she said it deteriorated over time. In the last year or two that she worked, Elsie sometimes did not know what day it was or whether she had eaten. Ms. Williams recalled an occasion when she asked Elsie what she wanted for lunch, and Elsie said, “did I not already have lunch”? She said Elsie was not a big eater, and her daughter encouraged her to eat. She liked sweets and they suggested that she drink Ensure to fortify her diet. Over time, she stopped reading and talking about books. [ 90 ] Ms.

Williams said she visited Elsie three or four times at Sagewood. During her first visit, Elsie did not know who Ms. Williams was, but she seemed to show some recognition after she explained. On some, Elsie would show her around, and show her pictures of her family. In mid-October, Elsie recognized her, but was very sick. On November 1, Elsie was not aware of her presence. Ms. Williams described her as “skin and bones” at that point, with a very weak voice. Cheques [ 91 ] On four or five occasions in the earlier years, Elsie asked Ms. Williams to mail envelopes to Richard. Initially, Ms.

Williams did not have any concerns, until Elsie asked her not to tell the plaintiff. After that, Elsie did not ask her to mail any more envelopes. Ms. Williams said the defendant’s address would be handwritten. Sometimes Elsie told her the envelopes contained cheques. On other occasions Ms. Williams assumed they were cheques because she could see through the envelopes. Elsie would comment that the defendant needed money. The only details she sometimes mentioned concerned the defendant’s son Gregory's education. Ms. Williams had the impression that Elsie felt the cheques were none of the plaintiff’s business. Ms.

Williams says when she spoke to the plaintiff about mailing the envelopes, the plaintiff was upset that Elsie would be sending money to Richard. Undue Influence [ 92 ] On occasion when the defendant was coming to visit Nova Scotia, Ms. Williams would ask Elsie if she was looking forward to it, to which Elsie would answer that she was, but it would cost her a lot of money, without further explanation. In September 2018, Ms. Williams asked her how her visit with the defendant went in August, and Elsie said, “it cost me a lot of money.” [ 93 ] Ms.

Williams recalled Elsie telling her that the defendant was a Crown prosecutor in Toronto and that she was proud of him. She would speak about his three children and the fact that they were going to university. The defendant’s son Gregory was going to school in the United States, and Elsie said she was helping him with the costs of education but did not go into detail. Ms. Williams testified that on the three days a week she was at the Filliter home, the defendant would call Elsie daily.

[ 94 ] Ms. Williams provided firsthand observations of Elsie. She worked daily with Elsie for almost three years and continued to see her on occasion. While employed by the plaintiff to do this work, there was no indication that her evidence was affected by that relationship. In fact, Ms. Williams evidence was consistent with that of others, and she presented as a truthful and careful witness who took testifying in this matter seriously. Her evidence is accepted and supports an ongoing decline in Elsie’s capacity over the years. Elizabeth Ann Sutherland [ 95 ] Ms. Sutherland was married to Dr. B.

Filliter’s brother. She had known Elsie since 1986. Starting in 2012, Ms. Sutherland, an accountant, prepared Elsie’s tax returns. She would go to the plaintiff’s home and Elsie would provide her with a box of materials. In the early years, she and Elsie would review each slip, but in later years Elsie would simply give her the box, becoming less engaged in the process. Ms. Sutherland described her as “failing a little”. In the later years, Elsie would simply sign the tax return and ask what she owed, with no further involvement. In the last year or two, Dr. B. Filliter would provide the receipts. [ 96 ] Ms.

Sutherland testified that Elsie received CRA notices of instalments owing but did not open them. Instead, she put them in a box with the rest of her financial information. Around 2015, Ms. Sutherland sought assistance from the plaintiff and her husband when Elsie fell behind in quarterly tax installments. Ms. Sutherland obtained post-dated cheques for the installments. She confirmed that it was her own handwriting in the “pay to” and the “amount” lines, but said Elsie signed the cheques. Ms. Sutherland said she filled out the cheques because Elsie found it difficult due to her physical frailty. [ 97 ] Ms.

Sutherland recalled visiting Elsie at Sagewood in April 2018, so that Elsie could sign her 2017 return. She believed Elsie knew who she was and why she was there, but there was little conversation. She was not certain whether they went over the entire return, due to Elsie’s frailty [ 98 ] Ms. Sutherland confirmed that she had Elsie sign her tax returns, including the declaration that the information was correct and complete. She testified that when a client signs this document, they are trusting her due diligence. She could not say if Elsie understood the information, as she believed Elsie was relying on her.

She said she never communicated with Elsie via email. [ 99 ] While Ms. Sutherland is connected to the plaintiff via a former marriage to Dr. B. Filliter’s brother there was no indication that her testimony was impacted by that connection. She spoke to her experience with Elsie and had observations over time as to how Elsie approached this aspect of her financial life. As a former banker, the evolution of Elsie’s approach to her taxes as described by this witness is of importance. Ms.

Sutherland certainly paints a picture of a person losing interest in this aspect of her life, to the point that installments are not taken care of. For someone in Elsie’s former line of work, I find this to be significant. I accept Ms. Sutherland’s evidence as credible and reliable. Esther MacEachern [ 100 ] Esther MacEachern testified virtually from England, where she has lived since 2019. She had previously resided in Nova Scotia since May 2001. She met Elsie in Malagash, Nova Scotia.

They developed a connection, both having spent time in England, and both having worked in male-dominated environments. [ 101 ] Ms. MacEachern would see Elsie mostly on weekends at the family cottage, but at other times as well. She noticed that Elsie ate less over time, and that she seemed confused in 2017 and 2018. She would watch the news repeatedly. From 2012 through 2018, she noticed Elsie’s concentration decline. She only talked about her banking days and seemed to be living in the past. Ms.

MacEachern said that on one occasion, she heard noise in the kitchen and found Elsie standing on a stool, trying to help reach her medication. Undue Influence [ 102 ] Ms. MacEachern said she met the defendant but noted that he did not spend much time with Elsie when he was in Nova Scotia. She said he never gave the plaintiff or her husband a break from caring for Elsie. Ms. MacEachern helped care for Elsie in 2017 and 2018. She would answer calls from the defendant. Elsie would go into another room and shut the door to take the call.

She recalled one occasion when, after talking to the defendant, Elsie came out, slammed the door, and went into the washroom. She asked Elsie if she was okay, and Elsie said something about “Richard.” Elsie later gave her an envelope addressed to the defendant and asked her to mail it. Nothing was raised to affect my assessment of Ms. MacEachern’s evidence. She testified in a straightforward manner. I accept her evidence. Lisa Laba [ 103 ] Ms. Laba, a Registered Nurse since 1999, is a care coordinator for home support services. She testified about the process for acceptance into a nursing home.

She described the assessment to determine whether an individual requires assistance with activities of daily living, including dressing, meal preparation, and medication, as well as issues with cognitive abilities. [ 104 ] Ms. Laba assessed Elsie’s short-term memory on February 2, 2015. Elsie had recall of three words that were told to her, followed by a series of questions and interactions. When asked later, Elsie was able to recall all three words. Ms. Laba also assessed Elsie’s cognitive skills for daily decision making, hearing that Elsie had difficulty with banking and remembering to pay her credit cards.

Elsie would ask questions over and over and forget responses. (Ms. Laba could not recall whether Elsie or the plaintiff told her this.) She identified the sources of information for the following portion of her February 2015 report as both the plaintiff and Elsie: ABILITY TO UNDERSTAND OTHERS (Comprehension) Daughter and client had a credit card issue. Daughter explained the issue multiple times and when client was required to speak to bank she required multiple explanations to client to address this with the bank and needed continuous prompting.

Client is very suspicious and paranoid with daughter’s involvement despite daughter being the POA. [ 105 ] In February 2015, Ms. Laba heard information that Elsie was minimally impaired, meaning that in specific situations her

decisions became poor, and supervision was necessary. Elsie usually understood but had difficulty finding words or finishing thoughts. She was exhibiting sadness, anger, some withdrawal from activities of interest, and reduced social interaction. Ms. Laba noted that she resisted care and was sometimes upset with others. [ 106 ] Ms. Laba assessed Elsie again on August 9, 2016. She noted that Elsie was suspicious and confrontational with the plaintiff during the assessment. There was obvious stress between the two. On June 21, 2017, they reviewed Elsie’s continuing care plan.

Elsie was interested in living at Sagewood. On November 21, 2017, Ms. Laba approved Elsie for long-term care. With respect to “cognitive skills for daily decision-making”, this assessment indicated that Elsie was moderately impaired, and that her decisions were consistently poor and unsafe. She always required cues and supervision. This assessment indicated more impairment than previous assessments. Ms. Laba confirmed that Elsie was required to consent to the assessment. She said she explained the form and was satisfied that Elsie understood what she was consenting to. On cross-examination Ms.

Laba agreed that she was not trained in capacity assessment and her primary role in the process was information gathering. [ 107 ] Ms. Laba described two categories or levels of continuing care in Nova Scotia: residential care and nursing care. Residential care is for an individual requiring one to two hours of care per day, while the nursing home level of care is for an individual needing more hands-on care with bed, bathing, and toileting. Throughout the assessments, Ms.

Laba said, Elsie was at the residential care level. [ 108 ] This witness was not presented as an expert witness, and, as such, her evidence is limited to her observations and information gathering. While some of her evidence is of assistance in relation to Elsie’s apparent cognitive capability and decline, overall, I relied in a limited way on this evidence, as there was more direct evidence from better-situated witnesses, including both lay and expert witnesses. Furthermore, Ms.

Laba’s information was from other sources, and she could not provide the court with her opinions on the plaintiff’s cognitive circumstances. Joanne Bowen [ 109 ] Ms. Bowen worked for the plaintiff as a housekeeper for 16 or 17 years, attending to the plaintiff’s home every second Friday. She met Elsie in 2012. Ms. Bowen described Elsie as a sparky but quiet person; she also described her as stately. Over time the two became good friends. This witness really gave life to Elsie as a person. She said Elsie loved to watch the news and do puzzles. Elsie appeared physically weaker and less talkative over time, and Ms.

Bowen said she noticed changes in her memory from 2016 to 2018. Elsie started repeating stories and questions. At Christmas 2016, for instance, Elsie gave Ms. Bowen a gift of $50. Two weeks later, when Ms. Bowen was back at the home, and Elsie again wanted to give her a gift, having forgotten that she had already given her $50, as Ms. Bowen reminded her. [ 110 ] Ms. Bowen described the care that Elsie received from the plaintiff and her husband as being “treated like a queen.” She was very well looked after.

She recalled five or six times when Elsie asked her to mail envelopes addressed to the defendant, without explanation. These envelopes were small, thin, and lightweight. She could see on one or two occasions that they contained cheques. She recalled this happening every three months or so, starting in late 2015 or 2016. [ 111 ] This witness was thoughtful in her answers to questions. While she was in an employment relationship with the plaintiff, I did not find her evidence was tainted by this. Her evidence is consistent with medical evidence showing a decline over time in Elsie’s memory.

Her evidence about Elsie’s forgetfulness about payment is relevant to my assessment of the matter. I found her to be a credible witness who understood the importance of providing accurate evidence. Claire Rachel Filliter [ 112 ] Ms. Filliter is married to the plaintiff's son, Daniel. She met Elsie when Elsie moved to Nova Scotia. She would see Elsie every few weeks and stayed with her at times when the plaintiff and her husband were not at home, to ensure that Elsie ate and took her medication. She recalled staying with Elsie about a dozen times in 2013 and 2014.

A typical day with Elsie would include making her meals and providing her medication. Elsie would watch television, particularly the news, and would talk about the past, including her work at the bank and her time living in Pakistan. Ms. Filliter testified that in the later years Elsie became thinner and quieter and did not eat a lot. Ms. Filliter observed that over time Elsie’s memory declined, and she repeated herself, re-telling the same story an hour later, or asking for her pills shortly after taking them. After 2014, Ms.

Filliter would stay with Elsie every once in a while, but would visit frequently. [ 113 ] Ms. Filliter recalled the defendant calling Elsie two to three times a day when she was there. Elsie would go into a separate room and speak privately. Elsie told Ms. Filliter that she felt bad for him because his wife's family did not help them out. [ 114 ] This witness’s evidence is consistent with that of many others. She spoke of Elsie as repeating herself often and being preoccupied with television over time.

Again, this evidence is consistent with many others who found Elsie having trouble recalling conversations and events overtime. I find this witness to be credible. Richard Raczkowski [ 115 ] The defendant is 71 years of age. He resides in Toronto, Ontario, with this wife Nancy. They have three children: Michael, Megan, and Gregory. The defendant is a lawyer, practicing as a municipal prosecutor since 1999, first part-time, then full-time since 2004.

He testified that he earns $95,000 a year, with annual increases of less than one percent. [ 116 ] The defendant confirmed that his mother paid $300,000 towards his family home, which cost $337,000. Initially, Elsie’s name was on the deed. She wanted to be sure the marriage was stable before transferring the home to him, in 2009. There was no expectation that the couple would reimburse Elsie for the home purchase. [ 117 ] The defendant testified that his wife deals with the finances. He spoke of his mother’s contributions to their children’s education.

He said he kept in close contact with his mother, and they got along well. Before 2012, he would have lunch w

[…]