Juzumas v. Baron, 2012 ONSC 7220 (CanLII)1
The case of Juzumas v. Baron presents a scenario not unlike the stories many of us have come across involving an older adult and a person who, under the guise of “caretaking”, moves to fulfill more of the latter part of that verb. The result: an older person is left in a more vulnerable position than that in which he or she was found. Recommended reading on predatory marriages may be found in Capacity to Marry and the Estate Plan. 2
This recent decision of the Ontario Superior Court of Justice involves a man, the plaintiff, who was 89 years old at the time the reported events took place. The plaintiff, of Lithuanian descent, had limited English skills. His neighbor described him as having been a mostly independent widow prior to meeting the defendant, a woman of 65 years.3 Once a “lovely and cheerful” gentleman, the plaintiff was later described as being downcast and “downtrodden.4 The defendant’s infiltration in the plaintiff’s life was credited for bringing about this transformation.
The defendant “befriended” the respondent in 2006. She visited him at his home, suggested that she provide assistance with housekeeping, and eventually increased her visits to 2-3 times a week. She did this despite the plaintiff’s initial reluctance.5 The defendant was aware that the plaintiff lived in fear that he would be forced to move away from his home. She offered to provide him with services to ensure that he would not need to move to a nursing home. He provided her with a monthly salary in exchange.6
The defendant ultimately convinced the plaintiff to marry her under the guise that she would thereby be eligible for a widow’s pension following his death, and for no other reason related to his money or property.7 She promised to live in the home after they were married and to take better care of him. Most importantly, she undertook not to send him to a nursing home as he so feared.8 The plaintiff agreed.
Despite the defendant’s promise that she would provide better care to the plaintiff if they married, testimonies from the plaintiff’s tenant and neighbor, which were both found to be credible, suggested that after the wedding, the relationship further deteriorated. The tenant described the defendant, who had introduced herself as the plaintiff’s niece, as “’abusive’, ‘controlling’ and ‘domineering’”.9
With the help of a plan devised over the course of the defendant’s consultation with the lawyer who had drafted the plaintiff’s will made in contemplation of marriage, the plaintiff’s son drafted an agreement which transferred the plaintiff’s home to him. The “agreement” acknowledged that the plaintiff did not want to be admitted to a nursing home. Justice Lang found that even if it had been shown to him, the plaintiff’s English skills would not have sufficed to enable him to understand the terms of the agreement, and that the agreement did not make it clear that it entailed a transfer of the plaintiff’s home.10
The plaintiff, the defendant and her son attended the lawyer’s office in order to sign an agreement respecting the transfer of the plaintiff’s property. Justice Lang found that the lawyer was aware of the plaintiff’s limited English skills; that his explanations to the plaintiff had been subpar; that he did not meet with the plaintiff alone; and only met with the parties for a brief time.11 Additionally, Justice Lang found that the agreement signed by the plaintiff was fundamentally different from the agreement he had been shown by the defendant and her son at the plaintiff’s home.12
Justice Lang also found that the plaintiff had been under the influence of emotional exhaustion or over-medication at the time the meeting took place, and that this may have been because the defendant was drugging his food.13
Notably, although the plaintiff initially a declaration that his marriage to the defendant was a nullity and void ab initio, he did not pursue his claim and a divorce was granted in its place.
In considering the transfer of property, Justice Lang applied and cited McCamus’ Law of Contracts, which outlines a “cluster of remedies” that may be used “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement.” Justice Lang outlined the applicable legal doctrines of undue influence and unconscionability, stating: “if any of these doctrines applies, the weaker party has the option of rescinding the agreement.”15
Justice Lang found that a presumption of undue influence existed between the parties in this case as the relationship in question involved an older person and his caretaker. In such a case, the defendant must rebut that evidence by showing that the transaction in question was an exercise of independent free-will, which can be demonstrated by evidence of independent legal advice or some other opportunity given to the vulnerable party which allows him or her to provide “a fully-informed and considered consent to the proposed transaction.”16
Doctrine of Unconscionability
Justice Lang stated that the doctrine of unconscionability “gives a court the jurisdiction to set aside an agreement resulting from an inequality of bargaining power.”17 The onus is on the defendant to establish the fairness of the transaction. This was not done by the defendant in this case.
In discussing the defendant’s claim of quantum meruit for services rendered, Justice Lang found that the period during which services were rendered could be divided into two: pre-marriage and post-marriage.
During the pre-marriage period, the defendant undertook to care for the plaintiff without an expectation or promise of remuneration, and persuaded the plaintiff to compensate her with a monthly income. Justice Lang found that no additional remuneration could be claimed for that period.
During the post-marriage period, Justice Lang found that the defendant had an expectation that she would be remunerated by the plaintiff, and that the plaintiff had agreed to do so.18
However, Justice Lang then reviewed the equitable principle that restitutionary relief allows a court to “refuse full restitution or to relieve [a party] from full liability where to refrain from doing so would, in all the circumstances, be inequitable.”19 In considering this principle, Justice Lang found that the defendant had “unclean hands” and that “the magnitude of her reprehensible behaviour is such that it taints the entire relationship.”20 As a result, Justice Lang found that the defendant was not entitled to any amount pursuant to her quantum meruit claim.
Costs were awarded in favour of the older adult plaintiff.21
The case of Juzumas v. Baron provides a helpful precedent in the area of elder abuse, as it demonstrates the tools of contract law and equity that may be used by a court in order to remedy a wrong incurred in the context of predatory marriages. This case provides what is, in predatory marriages, a rarity: an uplifting ending. In this case, it is not a family member or acquaintance who brought the case before a court after the vulnerable adult’s assets had already been depleted; rather, it is the older adult himself who, with the help of his neighbor, was able to seek justice and reverse some of the defendant’s wrongdoing.
In addition to its review of the legal concepts that are available to counsel seeking to remedy the wrongs associated with predatory marriages, this case demonstrates the usefulness of presenting the testimony of an older adult when it is possible and appropriate.
1. 2012 ONSC 7220 (CanLII) [“Juzumas”].
2. Kimberly Whaley, Dr. Michel Silberfeld, the Honourable Justice Heather McGee, and Helena Likwornik, Capacity to Marry and the Estate Plan (Toronto: Canada Law Book, 2010).
3. Juzumas, supra note 1 at para 1.
4. Ibid. at paras 39 and 56.
5. Ibid. at para 25.
6. Ibid. at para 28.
7. Ibid. at paras 26-28.
8. Ibid. at para 28.
9. Ibid. at para 54.
10. Ibid. at paras 68-69.
11. Ibid. at paras 79-84.
12. Ibid. at para 84.
13. Ibid. at paras 63 and 92.
14. Ibid. at para. 8 citing John McCamus, The Law of Contracts (2d) (Toronto: Irwin Law, 2012) at 378.
15. Ibid. at para 8.
16. Ibid. at para 11.
17. Ibid. at para 13.
18. Ibid. at para 129.
19. Ibid. at para 141 citing International Corona Resources Ltd. v. Lac Minerals Ltd.(1987), 44 DLR (4th) 592 (CA) at 661.
20. Ibid. at para 142.
21. 2012 ONSC 7332 (CanLII).