) ) GRAEME MCMASTER Applicant – v. –, 2013 ONSC 1115

CITATION : McMaster v. McMaster, 2013 ONSC 1115 COURT FILE NO.: 12-37156 DATE: February 28, 2013 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) GRAEME MCMASTER Applicant – and – MALCOLM JAMES MCMASTER, MARY ROSE MCMASTER, LINDA MCMASTER, JAMES W. OLIVER, and TURKSTRA MAZZA ASSOCIATES Respondents ) ) ) ) ) ) ) ) ))))) Clare E. Burns, for the Applicant Marc Munro for Respondents Malcolm and Linda McMaster ) HEARD: February 7, 2013 JUDGMENT ON AN APPLICATION WHITTEN J. [ 1 ] On the March 29, 1994 Mary Rose McMaster (Mary) granted a general power of attorney to her two sons Graeme and Malcolm McMaster.

Mary at that time was 80 years of age, enjoying good health. Mary was also affluent, possessing according to her son Malcolm upwards of $5,000,000, above and beyond her ownership of her own home and cottage. [ 2 ] With the passage of time Mary’s health has deteriorated along with her wealth. [ 3 ] Graeme unaware of his being a joint power of attorney with his brother until 2012 sought a passing of accounts from his brother Malcolm, the de facto financial manager of their mother’s assets. Malcolm has agreed to pass his accounts. Furthermore Graeme asserts that the court pursuant to

Section 39 of the Substitute Decisions Act , 1992 S.O. 1992, C. 30 should remove Malcolm as an attorney. I. ISSUES [ 4 ] Both Malcolm and his wife Linda McMaster were served with Graeme’s application and were represented by counsel at the hearing of the motion February 7, 2013. Mary had also been served with the application record. She was neither present nor represented at the hearing. Malcolm has been cross-examined on his affidavits. Graeme has not been cross-examined by counsel for Malcolm.

According to the order of Justice Carpenter-Gunn of October 25, 2012, all cross-examinations, if any, were to be conducted on or before December 12, 2012. Furthermore if Malcolm was going to move to convert this application to a trial of an issue he was to do so before December 19, 2012. The pivotal issue of the application is whether or not Malcolm should be removed for breach of his duty as an attorney of the property of Mary. A collateral issue is whether or not there has to be a formal finding by the court of mental incapacity or mental incapability as a condition precedent to such a determination. II.

APPLICABLE LAW The Statutory Framework

[ 5 ] The power of attorney referred to above was executed at the time when the Powers of Attorney Act , R.S.O. . P. 20 prevailed. The governing legislation since 1992 has been the Substitute Decisions Act S.O. 1992 C. 30 ( S.D.A .). The Statute is “remedial legislation designed to protect some of the most vulnerable people in our society. It shall be given a purposive

interpretation to protect those at risk” Mullan v Parr [2009]O.J.No. 1640 at para. 18 ;

Section 10 of the

Interpretation Act , R.S.O.1990, c.I.11, S.10 . [ 6 ] The Statute recognized that an individual can voluntarily grant a power of attorney over their affairs as was the case at hand. The Statute also provides for court appointment of guardians for management of property or personal care of an incapable person. The same standards apply to the exercise of these latter powers, whether it be as an attorney or a guardian. [ 7 ] There is no issue with the validity of the original power of attorney granted by Mary in 1994. It is also conceded to be “a continuing power of attorney” within the meaning of

section 7 of the Statute; namely that it would continue to prevail in the event of incompetency. It is interesting to note pursuant to subsection 4 of that

section that if there are two persons named as attorneys (as in this case) “the attorneys shall act jointly”, unless the power of attorney otherwise provides. Although the power of attorney provides that the attorneys are appointed both “jointly and severally” there is no limiting phraseology with respect to either of their roles. This mandatory language would presuppose that there would be transparency between the brothers as to the steps either one takes on behalf of their mother.

Fiscal Incapacity [ 8 ] “Capable” is defined under the Statute as “mentally capable”, capacity has the corresponding meaning. “Incapable” is similarly defined. A person over 18 years of age is presumed to be capable of entering into a contract; if he or she is over 16 years of age they are to be presumed to be capable of giving or refusing consent in connection with his or her own personal care. This latter aspect of legal capacity is not in issue in this matter – ss. 2(1) and (20. [ 9 ] The Statute goes on in

section 6 to state: A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonable foreseeable consequences of a decision or lack of decision. [ 10 ] This fiscal incapacity obviously could be an aspect of “incapacity” as defined, but could also exist without a full blown medical or legal diagnosis of incapacity. Fiscal incapacity must be objectively scrutinized according to Wilson, J. in McDougald Estate v. Gooderham [2003] O.J. No. 3106 at para. 71 .

The key elements are: an ability to understand the information (financial) and to appreciate the consequences of a particular decision. [ 11 ] Referring to the Health Care Consent Act , 1996 S.O. c. 2, Sched. A, at paras. 76-77 Wilson, J. quoted from

Part II of the Guidelines of that statute contained in the related regulations, to define “understand”: [76] At a minimum, a person must have a working knowledge of his or her financial health or personal care status and be aware of any pressing issues that call for decision making. He or she must also possess sufficient information about the available options. (ref. para. 76) [77] The “appreciate” standard attempts to capture the evaluative nature of capable decision making, and reflects the attachment of personal meaning to the facts of a given situation.

Individuals not only require the intellectual and cognitive capacity to factually understand information, they must also be able to rationally manipulate this information and appraise it in a reality grounded fashion. Thus, this standard focuses on the reasoning process behind the individual’s decision and in addition, explores the particular personal weights that the person attaches to one outcome or another. (ref. para. 78) The Responsibility of an Attorney [ 12 ] The duty of an attorney to cooperate or work with a co-attorney has already been referenced above.

Also as stated, the Statue deals with two principle areas of concern: property management and the person (care of).

Section 38 provides that the standards and duties of a court-appointed guardian contained in sections 32 and 37 are equally applicable to an attorney. [ 13 ] The base duty is that, “[an attorney] of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honestly and integrity and in good faith, for the incapable person’s benefit ” (emphasis added, Section 32(1).

It is trite to observe that this role is for the benefit of the person who originally held the assets, as in this case Mary. [ 14 ] Furthermore subsection 32(1.1) provides that, “if [the attorney’s] decision will have an effect on the incapable person’s personal comfort or wellbeing, the [attorney] shall consider that effect in determining whether the decision is for the incapable person’s benefit.”

[15] Subsection 32(3) states that the attorney is to “encourage the incapable person to participate to the best of his or her abilities,in the [attorney’s] decision about the property.” This subsection is another indication that the incapable person is not necessarily anindividual lacking capability or capacity to make basic decisions or fundamentally care for themselves as appears to be in the broadbased definition in Section 2(1)1(2). The latter incapacity is identified as such by medical opinions.

Under the predecessor legislation,The Mental Incompetency Act, it was the custom to produce two affidavits from medical doctors. [16] Subsection 32(5) provides that the attorney consult with the supportive family members of the incapable person who are inregular contact with the incapable person.

The attorney is in the exercise of management of property, to exercise the degree of care,diligence and skill that a person of ordinary prudence would exercise (ss. 32(7) and (8). [17] The attorney is liable for damages resulting from the breach of duty described (s. 33(1). [18] Section 37(1) mandates that an attorney make expenditures “that are reasonably necessary for the person’s support[...][and]...that are necessary to satisfy the persons other legal obligations.” The statue provides general principles with respect to theseexpenditures, in particular, “the value of the property, the accustomed standard of living of the incapable person[...]and the nature ofother legal obligations shall be taken into account.” (ref. ss. 37(2)(1.) Removal of an Attorney [19] Section 39(1) provides that a court has the discretion “to give directions on any question arising in connection with[...] [a]power of attorney.” [20] The court can in its discretion, order a passing of accounts (s. 42).

As mentioned, that issue is academic as Malcolm hasagreed to do so. [21] Under subsection 7 of

section 42, the court if there is an application to pass the accounts, may on motion or on its owninitiative (which is a recognition of the independent power of the court in such matters,) appoint the Public Guardian and Trustee orsome other person to act as a guardian/attorney of the property and/or order that the power of attorney be terminated. [22] This last option is quite dramatic, as in a way it is an interference with the expressed will of the grantor. Justice Fragomeni inTeffer v. Schaefers [2008] O.J.

No. 3618 reviewed the jurisprudence and concluded at paras. 24-25: [...](F)irst, there must be strong and compelling evidence of misconduct or neglect on the part of the attorney before a court could ignorethe clear wishes of the donor[...] The second issue relates to whether the court is of the opinion that the best interests of the incapableperson are being served by the attorney. (ref. paras. 24 and 25) [1] [23] The analysis of whether or not these issues are in play is inevitably contextual. [24] Examples of attorney misconduct in Teffer were: failure to provide a monthly accounting; failure to voluntarily pass accounts;failure to provide missing information or documentation with respect to missing funds; and, an inability to follow court orders. [25] It is of interest that Justice Fragomeni observed in Teffer with respect to the second issue that there was medical evidence tosuggest that it was unlikely that the grantor knew what kind of property she had, or its approximate value.

Her short term memoryimpairment[...]”would have prevented her from keeping recent information about her complex and substantial properties in mind.” HisHonour was satisfied the grantor did not have the capacity to manage property. Common Law and Parens Patriae [26] The exercise of parens patriae is part of the inherent power of a superior court. This power exists by virtue of the commonlaw. As Justice Cory held in Rawluk v.

Rawluk (SCC), [1990] 1 S.C.R. 70 at para. 36, “it is trite but true to state that asa general rule a legislature is presumed not to depart from the prevailing law without expressing its intentions to do so with irresistibleclearness.” (Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co. (SCC), [1956] S.C.R. 610 at p. 614.

Justice Kentreiterated this need for a clear expressed departure from the common law within the statute, twelve years later in Kosanovic v.Wawaneesa Mutual Insurance Co. (2002) (ON SC), 62 O.R. (3d) 160 (Ont.S.C.J.) at paras. 10 and 11: “Apresumption exists that legislation is not meant to interfere with common law rights or to oust the jurisdiction of the common law courtsnor generally to change the common law. See Driedger on the Construction of Statutes, 3rd ed. (Toronto Butterworths, 1994) at page298.” [27] Justice LaForest clarified the nature of parens patriae jurisdiction in E.(Mrs.) v.

Eve (1986) (SCC), 2 S.C.R.388 (S.C.C.) at paras. 72 and 74. He wrote: 72. From the earliest time, the sovereign as parens patriae was vested with the care of the mentally incompetent. This right and duty asLord Eldon noted in Wellesley v. Duke of Beaufort, supra at 2 Russ at p. 20, 38 E.R. at p. 243 is founded on the obvious necessity thatthe law should place somewhere the care of persons who are not able to take care of themselves. In early (page 426) England, thejurisdiction was confined to mental incompetence....

The parens patriae jurisdiction was later vested in the provincial superior courts ofthis county. 73. The parens patriae jurisdiction is... founded on necessity, namely the need to act for the protection of those who cannot care forthemselves. The courts have frequently stated that it is to be exercised in the “best interest of the protected persons, or again, for his orher “benefit” or “welfare”.

[ 28 ] This jurisdiction of the superior courts has been for the most part exercised on behalf of children. However, as the references to the judgment of Justice LaForest demonstrate, it originated with a concern for the interests of vulnerable persons who generally lacked the capacity to make decisions for themselves. That aspect of parens patriae exists today. (see: Gray v. Ontario [2006] O.J. No. 266 (Ont. Div. Ct.) That is especially so when there are legislative gaps.

Assume for a moment there is a gap between protecting the interests of a person incapable of managing their financial affairs, (i.e. fiscal capacity) versus general overall capacity as defined by medical evidence and precedent. III. FACTUAL BACKGROUND [ 29 ] As mentioned at the outset, Mary has, since at least from the time of the original power of attorney, owned her home located in a historic area in Dundas, Ontario. That home has been divided in two and actually constitutes two different municipal addresses. Malcolm and his spouse occupy one unit, Mary the other. Malcolm and his spouse do not pay rent to Mary.

As of 2009 unpaid realty tax with respect to this property started to accumulate such that as of July 30, 2012, $19,678.27 was owed. [ 30 ] Mary also owns a summer cottage in the Bruce Peninsula. The outstanding taxes for this property (as of August 2, 2012) are $475. [ 31 ] Malcolm states in his affidavit that he took over the management of his mother’s financial affairs in 1994. Presumably this was coincidental with the execution of the power of attorney. Graeme did not know he was a co-attorney, but appears to have acquiesced in Malcolm’s de facto fiscal management.

Malcolm deposes that through his management the estate swelled upwards towards $5,000,000. However the vicissitudes of the market, especially given that he invested his money in Nortel, diminished that fortune. [ 32 ] As of 2002, when a company, MMG, McMaster Investments (the family corporation) was incorporated with Mary and the two brothers as shareholders, there was approximately $2,000,000 of Mary’s assets brought into the corporation. The Health of Mary [ 33 ] It is appropriate at this juncture to discuss the health of Mary and any deterioration.

The two brothers are at odds as to whether or not Mary has dementia. As mentioned Graeme has not been cross-examined as to his assertions that Mary is so afflicted. There is medical evidence to support Graeme’s assertions and none to support that of Malcolm’s. In fact some of the reported notations in the medical reports of the dementia appear to be in the presence of Malcolm’s spouse, Linda. [ 34 ] A base line diagnosis can perhaps be established with the consultation report of Cynthia Hobbs, M.D., dated April 25, 2000. Mary was accompanied by Graeme. She was presenting with sleeping problems.

Mary apparently volunteered that she was having problems with her memory. Dr. Hobbs asked Mary if she was concerned about Alzheimer’s disease. Mary did not think that that was the problem. [ 35 ] It was noted at page 2 of this report that Mary was doing her own banking without any problem. Generally Mary sounded quite active. Examination by Dr. Hobbs revealed “a very attractive, well dressed woman who looks at least 20 years younger than her stated age.” A complete neurological examination was conducted.

It was noted under the heading “Mental Status” that Mary drew an appropriate clock., (this is one of the tests administered to determine intellectual acuity. If the drawing of the clock was akin to Salvador Dali’s paintings it would not bode well.) Mary performed generally well on the cognitive tests except for her poor short term memory and a little difficulty with abstract thinking. [ 36 ] Dr.

Hobbs opined that Mary’s cognitive condition should be followed up in the 6 to 12 months after the visit as, “we have a few people that presented with this pattern and ultimately progressed to a picture more consistent with dementia.” [ 37 ] On January 31, 2002 Mary was accompanied by Malcolm to see the family physician Dr. Nash. Malcolm was concerned about his mother’s alcohol consumption. Mary did not see that as a problem. Malcolm was frustrated with his mother. He wished that she would be more active. Dr.

Nash concluded his notation that day with “elements of dementia.” [ 38 ] Obviously with the passage of a year and three quarters Mary’s presentation is quite removed from impressions of Dr. Hobbs. [ 39 ] There is a form entitled “The Assessment of Cognitive Ability – Mini-Mental State Examination (MMSE)” dated October 24, 2002. Mary scored “appropriately" on this test, except for her recall. This form appeared to be completed by the family physician Dr. Nash on that date (his notes are actually dated October 25, 2002). Dr.

Nash noted that Mary was “somewhat more forgetful.” Malcolm was present during that visit. [ 40 ] When Dr. Nash saw Mary on, March 11, 2009, she was accompanied by her daughter-in-law. One of Dr. Nash’s conclusions was that his patient was experiencing “late stage dementia problems.” [ 41 ] October 7, 2010, an assessment at the Castlewood Dental Office revealed that Mary had “very poor oral hygiene”. [ 42 ] On February 8, 2011, a supervisor (the qualifications of the individual are not set out) of the St.

Elizabeth Health Care Centre diagnosed Mary as having dementia. [ 43 ] Mary was taken by Linda McMaster to the Urgent Care Centre of Hamilton Health Sciences on May 17, 2012. Nursing staff noted that Mary was unable to give her medical history. Her history was then provided by Linda, who also volunteered that her mother-

in-law was “cognitively impaired.” The attending physician noted that Mary was forgetful and that she lived alone beside her daughter (Linda). [ 44 ] On July 4, 2012, there was another attendance by Mary at the Urgent Care Centre of the Hamilton Health Sciences. Under the heading “Nursing Notes” it would appear that Malcolm’s wife Linda was with her mother-in-law and she related how Mary may have fallen. Presumably it was Linda who reported that Mary “has dementia.” The attending physician, Dr.

Kerr, had noted “dementia.” It was suggested that a call be placed to CCAC (Community Care Access Centre) for patient support. [ 45 ] August 27, 2012, Kathy Fruck, a case supervisor for the Community Care Access Centre completed a Home Care MDS Report. Ms. Fruck, under the heading of “diseases” ticked off “dementia.” The Fiscal Management by Malcolm [ 46 ] In 2004 Malcolm transferred significant sums from the family corporation to corporations controlled by himself.

There does appear to be some communication from Malcolm to Graeme as to the health of the family corporation and its investments up to 2005. [ 47 ] In the fall of 2004 Malcolm advised Graeme after the fact that he had invested monies transferred to his corporation in go-kart tracks in Wisconsin (Midwest Amusements) and in Hamilton, Ontario (Cameron Motorsports and Hurricane Racing). A year later, Malcolm was enmeshed in lawsuits against these entities for allegedly deceitful and fraudulent conversion of the investments funds of his mother.

Malcolm in his affidavit of November 15, 2012, paras. 16 and 17, relates how these lawsuits are at a standstill because of the costs of an accounting analysis and that “the estate of my mother has no cash and it will not have any unless my mother’s house is mortgaged” nor was he able to collect from one of the other defendants. [ 48 ] This dearth of funds was what motivated Malcolm to take steps in June, 2012 to obtain a CHIP mortgage on his mother’s house.

Graeme objected to this and it was during the communications back and forth he discovered that he was in fact a co-attorney. [ 49 ] There are other investments that Malcolm made with funds from his mother . Through one of his companies, a building was purchased in 2006 for $300,000. Malcolm deposes that this building was renovated and sold for in excess of $500,000 in 2012. Malcolm deposited to the credit of the family corporation the sum of $453,727.68. Yet the date of this cheque is April 1, 2010. Regrettably there is no explanation as to the whereabouts of these funds.

Nor does it appear that any capital gains tax was remitted on this sale. [ 50 ] Mr. Smithers, the accountant for the family corporation, the corporations of Malcolm, and the personal accountant for Mary, advised the brothers in July, 2012 of several fiscal issues. Mary’s personal taxes had not been prepared since 2008. The last time a corporate tax return was prepared was in 2008. GST/HST wage deductions had not been paid for years for various employees.

Apparently the family corporation had an outstanding line of credit with CIBC in the amount of approximately $65,000 for a margin account (i.e. purchase of shares, bonds, etc. through Scotia Trade).

Moneys were owed for accounting fees. [ 51 ] By order dated October 2, 2012, Justice Milanetti ordered in paragraph 3 that “this court orders that Malcolm James McMaster shall within three business days of the date of this order surrender Mary Rose McMaster’s CIBC Visa card to the applicant and that no further charges shall be made against the card.” The account statement of Mary’s CIBC Aerogold Visa card for business (one might reasonably ask “what business would this 98 year-old have at this point?”) for up to November 27, 2012 shows purchases totalling $99.00 October 26 and November 19, 2012.

At first blush this might be construed as being contrary to Her Honour’s order; however, in fairness the transactions appear to be to charities and could be preauthorized payments. The Personal Care of Mary [ 52 ] The brothers have diametrically opposed points of view as to the quality of care their mother is receiving. That being said, Graeme’s concerns were not subject to cross-examination nor were there any health records produced to support Malcolm’s assertions. If anything, (as outlined above) the health records from 2000 onwards reveal a progressive decline in Mary’s health.

That decline may be a phenomenon of aging but the picture of her in 2000 as a well- dressed, very attractive woman, presenting younger than her age, appears to be completely displaced. IV. ANALYSIS [ 53 ] Mary’s capacity since the base line diagnosis drawn in 2000 is considerably diminished. Even in April of 2000 the health care professionals were expressing concern as to elements of dementia. That concern appears to have been a well entrenched diagnosis by the time the family physician Dr. Nash saw Mary March 11, 2009.

The diagnosis appears to be accepted by Linda McMaster when she accompanied Mary to the Urgent Care Centre on May 17, 2012 and July 4, 2012. At the very least, for well over a decade Mary has been plagued by short term memory loss and forgetfulness. [ 54 ] Mary was not present on February 7, 2013, so the court would not be able to make any observations as to her ability.

Nor was there a representative for Mary who could present evidence as to her abilities. [ 55 ] The difference between Mary being incapable generally - which the court could determine by requesting an assessment pursuant to the Statute, and her being fiscally incapable pursuant to

Section 6, is practically speaking academic. The medical reports paint a picture of an individual with at least “fiscal incapacity.” Mary would not have had the capability in the last 12 years to understand the financial “management” by Malcolm. Furthermore, there is absolutely no evidence from Malcolm that he informed his

mother of what he was doing, let alone encouraging her to participate in the fiscal decisions he was making with respect to her money. [ 56 ] Even if it were necessary in order to declare Mary fiscally incapable, more detailed medical evidence is necessary, what evidence exists is clearly that of an elderly vulnerable person who because of her memory deficits and her “dementia”, would have absolutely no ability to “understand” or “appreciate”, as referenced by Wilson, J. in McDougald Estate v. Gooderham , Opus (cited).

Mary is the embodiment of an individual who needs protection of the court, otherwise she is a pawn in the investment schemes of her son. The concept of parens patriae can be relied upon by the court to critically assess pursuant to section 39(1) of the Statue to assess the stewardship of Malcolm. [ 57 ] Malcolm’s management of his mother’s fortune does not present as being in satisfaction of his duty to manage those substantial funds for Mary’s benefit, or to preserve a fund for her care.

Those objectives appear to have been completely lost. [ 58 ] Although he touts his ability to financially manage his mother’s fortune to a height of $5,000,000, his investment in go-kart tracks appears more manifestation of his personal interest. It is impossible to comprehend that a reasonably objective financial manager would recommend such an investment to an elderly person. Financial advisors generally, routinely canvass how risk adverse their clients are and what do they hope to achieve with their investments.

A standard goal of an elderly person is to provide a base for continuing support with regard to their standard of living and possibly have something left over for their heirs (of which Malcolm does not appear to be). This investment was obviously high risk as evidenced by litigation commencing within a year. There appears to have been absolutely no consideration of conservative low risk guaranteed investments such as government bonds.

Equally absent is any diversification in investment to spread the risk. [ 59 ] The go-kart investment (if it can be called that) appears to have triggered progressively unwise investments, supposedly on behalf of his elderly mother. Why would he engage in stock transactions on the margin such that his mother now owes CIBC $65,000? At that point Malcolm was not investing. He was gambling with his mother’s funds. He knew from his own experience with Nortel that the market was volatile. [ 60 ] Malcolm’s stewardship of his mother’s funds has progressively put his mother’s remaining assets in jeopardy.

He and his wife have not paid rent for their residence. Mary’s property taxes have lapsed. Her income taxes are not addressed. These are legal obligations that he was to address in the exercise of his fiduciary duty. Not only has he failed to address these obligations he sought to further diminish her principle asset, her residence by a CHIP mortgage, in order to bail out the go-kart investments.

Malcolm appears to be desirous of literally “throwing good money after bad”. [ 61 ] There is absolutely no explanation for the whereabouts of $457,000 he deposited to the credit of the family corporation in 2010. [ 62 ] Malcolm did not demonstrate the transparency required of him as a co-attorney. Graeme did not even know he was an attorney until July, 2012. Malcolm did not tell Graeme about the go-kart “investment” until after the fact. He was not forthcoming with a passing of accounts. This application was originally contemplated October 2, 2012.

It was only at the time of the hearing February 7, 2013 that he agreed to pass the accounts. [ 63 ] The fiscal stewardship of Malcolm has been a disaster for his mother. He has literally blown through at least $2,000,000. If there was ever a case for removal of an attorney this is it. It will prevent the further haemorrhaging of his mother’s assets. [ 64 ] Obviously Graeme will be the sole remaining attorney. He too will be required to pass accounts at least bi-annually or as otherwise agreed upon or ordered. V.

CONCLUSION 1) For all of the above reasons one Malcolm James McMaster is hereby removed as continuing attorney for the property of Mary Rose McMaster pursuant to the power of attorney executed March 29, 1994 and in any other documents. 2) Consistent with this decision by the court James Oliver and/or Turkstra Mazza Associates shall immediately release the original general power of attorney executed by Mary Rose McMaster on March 29, 1994 to the applicant. 3) There should be an order for the remaining items referenced in the draft order presented to the court February 2, 2013, attached to this order as Appendix A. 4) If counsel cannot agree as to the level and appropriate quantum of costs, written submissions no greater than five pages above and beyond the actual Bill of Costs are to be exchanged and submitted to the court within 60 days of receipt of this judgment.

Dated at Hamilton, this 28 th day of February, 2013 The Honourable Mr. Justice A.C.R. Whitten

CITATION : McMaster v. McMaster, 2013 ONSC 1115 COURT FILE NO.: 12-37156 DATE: February 28, 2013

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: GRAEME MCMASTER Applicant – and – MALCOLM JAMES MCMASTER, MARY ROSE MCMASTER, LINDA MCMASTER, JAMES W. OLIVER, and TURKSTRA MAZZA ASSOCIATES Respondents JUDGMENT ON AN APPLICATION WHITTEN J. ACRW:mw Released: February 28, 2013