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Equitable Remedies for Financial Abuse of the Elderly: Waruk v. Waruk

This blog post is part of six-part series with Professor Albert Oosterhoff examining the application of equitable remedies in instances of elder abuse. This post will discuss the case Waruk v. Waruk,[1] which, while unfortunately common in terms of its facts, involves the unique application of the equitable remedy of injunctive relief in circumstances of elder abuse.

Waruk v. Waruk is an appeal by Laura Birtwhistle of a judgment dismissing her application to set aside an injunction preventing her from visiting her grandmother, Lynne. Laura and her mother, Audrey, had travelled to Vancouver to assist, supposedly, with Lynne’s care (though labelling their actions “assistance” in this case appears wholly inappropriate). Shortly after arriving in Vancouver, Audrey sought to be appointed Lynne’s committee[2] of the person. Lynne’s husband, Mr. Waruk, and her son also sought to be appointed committees of her estate and person.

In the course of the committee dispute, Laura and Audrey began making claims alleging that Mr. Waruk mistreated Lynne. They became increasingly disruptive at the hospital where Lynne was residing, and mistreated hospital staff. They strongly objected to Mr. Waruk visiting Lynne, at times engaging in physical confrontations with Mr. Waruk. Laura was asked to leave the hospital under threat of arrest after alleging that Mr. Waruk would poison Lynne. After Lynne returned home with Mr. Waruk, Laura was denied entry and began banging on the windows and doors of the home.  Needless to say, the family conflict was extremely distressing to Lynne.

The Court of Appeal, in continuing the injunction against Laura, chose not to interfere with the discretionary order of the trial judge to grant the injunctive relief. Injunctive relief is a remedy that, broadly speaking, prevents one party from taking a certain course of action. It is available in equity where the common law could only award damages, and can be awarded on an interim or interlocutory basis.

In this case, while it was undoubtedly painful for Lynne to not to be able to see her daughter and granddaughter, the Court found that barring visitation was the least harmful option. Older adults at the centre of family disputes often suffer emotional distress as a result, and if the family is unable to keep the peace in the presence of an older adult, an injunction or trespass order may be the only solution (with the latter typically at the request of the care facility).

[1] 1996 CarswellBC 2463 (CA).

[2] A “committee” is the British Columbia equivalent of a “guardian” under Ontario law.

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