Including air! Plus you get a night in Tokyo. Valid til December 3. Damnit, I don't have time
expatbrit
JoinedPosts by expatbrit
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Expatbrit's Winter getaway great deal: 2wks in Bali from Cdn$1499p.p!!!!!
by expatbrit inincluding air!
plus you get a night in tokyo.
valid til december 3. damnit, i don't have time .
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expatbrit
plus I can go into a museum and start naming the artist of a particular piece without looking at the placard.
"Shite" is not a name.
Expatbrit
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Expatbrit's miscellaneous legal stuff thread
by expatbrit ina repository for legal stuff relating to or involving jehovah's witnesses that doesn't warrant its own thread.. disclaimer: whatever is posted here is for information purposes only.
cases may have been appealed and judgements affirmed or rejected in higher courts.
get a lawyer.. expatbrit
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expatbrit
Court: US Court of Appeals, Eleventh Circuit
Year: 1996
Summary: JW and mother sue hospital for $19million in compensation after they save his life with blood transfusions.
----------------------------------------------------------United States Court of Appeals,
Eleventh Circuit.
No. 94-8403.
Gregory Alan NOVAK, individually and by his next friend June Lowery Novak; June Lowery Novak, individually and on behalf of her son Gregory Alan Novak, Plaintiffs-Appellants,
v.
COBB COUNTY KENNESTONE HOSPITAL AUTHORITY d/b/a Kennestone Hospital; Samuel D. Bishop; Bradley E. Henderson; John David Tucker; Richard G. Gray; W. Grady Pedrick; Jerry A. Landers, Jr. and Robert D. Ingram, Defendants-Appellees.
Feb. 14, 1996.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:90-01316-CV-JEC), Julie E. Carnes, Judge.
Before TJOFLAT, Chief Judge, COX, Circuit Judge, and WELLFORD[*], Senior Circuit Judge.
TJOFLAT, Chief Judge:
I.
In the early morning hours of June 18, 1989, Gregory Alan Novak, then sixteen years old, fell asleep at the wheel of his automobile, crashed into a guard rail on I-575 in Cherokee County, Georgia, and was seriously injured. Novak was removed from the scene by ambulance and taken to Kennestone Hospital, a facility operated by the Cobb County Kennestone Hospital Authority. There, it was determined that Novak had sustained numerous injuries, including fractures of both legs and multiple lacerations.
Shortly after arriving at the hospital's emergency room, Novak, anticipating that a blood transfusion might be needed, told the staff not to give him any blood.[1] Novak said that he was a Jehovah's Witness and that it was against his religious beliefs to receive blood.
The orthopedic physician handling Novak's case, Dr. Bradley E. Henderson, concluded that surgery would be needed to repair Novak's fractured right leg. Novak's father, the only family member on the scene, consented to the surgery. He did so, however, with the understanding that Novak be given no blood during the procedure. (Novak's father was not a Jehovah's Witness, but his mother, in whose custody Novak had been since his parents' divorce, was. Novak's father knew that she, as well as his son, would object to any blood transfusion.) Dr. Henderson believed that Novak could withstand the surgical procedure without a blood transfusion; accordingly, in the early morning hours of June 18, he performed the operation.
Novak lost a considerable amount of blood as a result of his injuries and the subsequent triage and surgery. By the early afternoon of June 19, he had become severely anemic. Novak's blood count and blood pressure were falling at such a rate that Drs. Henderson and John David Tucker, the general surgeon on the case, after consulting Dr. Richard G. Gray, a hematologist, were convinced that, without a blood transfusion, Novak would likely die.[2] Mrs. Novak and her son knew this; they continued to reject the physicians' recommendations, however. A transfusion would be against their religious beliefs.
At this point, Drs. Henderson and Tucker informed the hospital's management of Novak's condition and of Mrs. Novak's refusal to allow a transfusion?even if necessary to save Novak's life. The matter was assigned to Samuel Bishop, the hospital's Director of Risk Management, and he immediately contacted the law firm that represented the hospital and explained the situation.[3] After consulting with Dr. Henderson and confirming the information they had received?that without a transfusion, Gregory Novak could die at any time?attorneys W. Grady Pedrick and Jerry A. Landers, Jr. decided to petition the Cobb County Superior Court for the appointment of a guardian ad litem. The person they had in mind for the appointment was Robert Ingram, a practicing lawyer in Cobb County. Landers contacted Ingram, advised him of Gregory Novak's condition and of his and his mother's refusal to allow a blood transfusion, and asked him whether he would to serve as guardian ad litem if appointed. Ingram said he would; the assignment would present no conflict of interest on his part.
They filed their petition in the afternoon of the 19th, at 4:49 p.m. The petition, which sought the appointment of a guardian ad litem for the sole purpose of determining whether the blood transfusion the physicians were recommending would be in Gregory Novak's best interest, was assigned to Judge P. Harris Hines. Because the petition presented a matter that needed immediate attention, Judge Hines considered it within minutes, without notice to Novak or his mother.[4] After hearing from Pedrick and Landers and reading Dr. Henderson's affidavit, Judge Hines granted the petition and appointed Ingram guardian ad litem for the limited purpose described in the petition.
At a little after 9:00 the following morning, June 20, Judge Hines telephoned Bishop, learned that Novak's condition had deteriorated during the night, and told Bishop that he was convening a hearing at the hospital as soon as he could get there. The hospital's attorneys and Novak's treating physicians were to attend the hearing.
The hearing began at 9:35 a.m. in the hospital's intensive care unit where Gregory Novak was confined. Judge Hines handled the hearing himself in that he, alone, examined the witnesses: Drs. Henderson and Tucker, Novak's primary treating physicians, and members of the hospital's staff. The hospital's attorneys, Pedrick and Landers, simply stood by. The physicians testified that Novak's condition was continuing to deteriorate and that, without a blood transfusion, he would probably die.
At the conclusion of the hearing, the guardian ad litem asked the court to order a transfusion. In response, the court noted for the record that Mrs. Novak had not changed her position?a blood transfusion would offend her and her son's religious beliefs?but held that her wishes could not be imposed on her minor child given the life or death situation at hand. An order authorizing the treating physicians to arrange for the blood transfusion was therefore entered.
The transfusion was promptly carried out; Gregory Novak received three units of packed red blood cells. His blood count improved significantly, and he suffered no untoward effects from the procedure. In due course, he fully recovered from his injuries.
II.
On June 18, 1990, Gregory Novak and his mother, June Lowrey Novak, brought this suit. They seek compensatory and punitive damages from (1) Gregory Novak's treating physicians, Drs. Henderson and Tucker, (2) Dr. Gray, the hematologist whom Dr. Henderson consulted on June 19, (3) the governmental authority that operates the hospital, (4) the hospital's Director of Risk Management, Samuel Bishop, (5) the attorneys, Grady Pedrick and Jerry Landers, who petitioned the Cobb County Superior Court for the appointment of a guardian ad litem, and (6) the guardian ad litem, Robert Ingram.
The Novaks' amended complaint, which is the pleading before us, contains eighteen counts; some of the counts, such as count one, assert several discrete causes of action.[5] In the first twelve counts, Gregory Novak seeks $12,500,000 in compensatory damages, plus punitive damages; in the remaining counts, June Novak seeks $6,500,000 in compensatory damages plus punitive damages. Some of the Novaks' claims allege federal constitutional violations and are brought under 42 U.S.C. § 1983. The remainder allege violations of Georgia constitutional, statutory, or common law rules.
The district court concluded that the Novaks' federal claims were meritless and gave the defendants summary judgment. Having disposed of the Novaks' federal claims in this fashion, the court dismissed their pendent state law claims without prejudice. We agree with the district court that the Novaks have no valid claim under the United States Constitution and thus affirm its summary disposal of their section 1983 claims.[6] Given this disposition, we also affirm the court's dismissal of the Novaks' pendent claims.
III.
In count one of his amended complaint, Gregory Novak alleges that the administration of the blood transfusion of June 20?over his mother's and his objection on religious grounds?deprived him of the following
rights, privileges, and immunities secured to him by the Constitution of the United States:
(a) His right to be free from the deprivation of life, liberty, or property without due process of law under the Fifth Amendment ... made applicable to the States by the Fourteenth Amendment....
(b) His right to be free from the deprivation of life, liberty, or property, without due process of law under the Fourteenth Amendment....
(c) His right of religious freedom under the First Amendment ..., made applicable to the States by the Fourteenth Amendment....
(d) His right of personal privacy protected by virtue of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments....
(e) His right to equal protection of law under the Fourteenth Amendment....
(f) His right to freedom of contract, protected by the Fifth Amendment and/or the Fourteenth Amendment....
(g) His right to have his privileges and immunities as a citizen of the United States free from abridgement by the State of Georgia contrary to the Fourteenth Amendment ...; and
(h) His right to be free from deprivation of his liberty interest in maintaining his familial relationship with his mother under the Fourteenth Amendment....
Gregory Novak concedes, as he must, that the constitutional injuries he allegedly suffered would not have occurred had Judge Hines not issued the order authorizing the blood transfusion his physicians administered.[7] Moreover, if the issuance of the order constituted an independent act on the court's part, then it is of no moment whether, as the plaintiffs allege, Gregory Novak's physicians erred in believing that their patient's life was in jeopardy, the hospital and its attorneys erred in deciding to petition the superior court for the appointment of a guardian, and the guardian ad litem erred in asking the court to issue the order in question. On the record of this case, there can be no doubt that Judge Hines acted independently in issuing the order. Judge Hines, alone, decided to entertain the attorneys' petition, to appoint a guardian ad litem, to hold the hearing at the hospital, to summon and examine the witnesses, and to order the transfusion.
The Novaks' attorneys, anticipating this problem of causation, sought to avoid the problem by alleging that the transfusion Judge Hines authorized was the product of a conspiracy. By linking the defendants to the state actor, Judge Hines, through a conspiracy, counsel apparently believed that they could satisfy the requirements of 42 U.S.C. § 1983 and the Fourteenth Amendment. See Jones v. Preuit & Mauldin, 851 F.2d 1321, 1330 (11th Cir.1988) (en banc) (Tjoflat, J., specially concurring) (section 1983 requires proof of an affirmative causal connection between the action taken by the defendant and the constitutional deprivation), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989); Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990) (private defendants can be liable under section 1983 if they act in concert with state officials in depriving the plaintiff of constitutional rights), cert. denied, 500 U.S. 932, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991); see also Dennis v. Sparks, 449 U.S. 24, 27-29, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980) (though a judge may be immune from suit, private parties who conspire with him act "under color of state law" for purposes of section 1983). Counsel did not refer to Judge Hines as one of the conspirators by name; rather, they did so by implication?by alleging that the named defendants were either state actors or "private persons who acted jointly with, willfully participated with, or conspired with state actors or their agents under color of the statutes ... of the State of Georgia, and thereby caused Plaintiff Gregory Alan Novak ... to be subjected to the deprivation of [his constitutional rights]." (emphasis added).
Thus, in order to have caused Novak to suffer constitutional injury, the defendants had to have conspired with Judge Hines. At oral argument, the Novaks' attorneys were asked whether the record contained any evidence that any of the defendants conspired with Judge Hines to obtain a court- authorized transfusion. They said it did not. Having made that concession, the Novaks' counsel argued that the defendants should be held to have caused the plaintiff's injury because they obtained the order from a court that the defendants knew or should have known had no jurisdiction to grant it. Although the Cobb County Superior Court is a court of general jurisdiction, counsel contends that the only court with jurisdiction to authorize the transfusion was the Cobb County Juvenile Court.
The Novaks' amended complaint nowhere alleges that Judge Hines lacked jurisdiction to enter the order in question. Their attorneys concede this point but contend that their allegations raise the inference that Judge Hines lacked jurisdiction to issue the order. Drawing such an inference, they argue, would be consistent with the spirit of notice pleading. We refuse to draw the inference; we do not consider on appeal claims that are not presented to the district court. Glenn v. United States Postal Serv., 939 F.2d 1516, 1523 (11th Cir.1991); Lattimore v. Oman Constr., 868 F.2d 437, 439 (11th Cir.1989).
Mrs. Novak's federal constitutional claims, which are contained in count thirteen of the amended complaint, suffer the same shortcomings. Liability is predicated on the existence of conspiracy, and there is none.
IV.
In conclusion, we find no cognizable federal constitutional claims in this record and therefore affirm the district court's grant of summary judgment. We also affirm the court's dismissal of the Novaks' pendent state law claims without prejudice. Finally, because we find this appeal to be frivolous with respect to appellants' claims against Dr. Gray and the hospital's attorneys, we award them double costs and reasonable attorney's fees. Those fees shall be determined by the district court following receipt of our mandate. See Fed.R.App.P. 38; Pelletier v. Zweifel, 921 F.2d 1465, 1523 (11th Cir.); cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991).
SO ORDERED. -
15
Expatbrit's miscellaneous legal stuff thread
by expatbrit ina repository for legal stuff relating to or involving jehovah's witnesses that doesn't warrant its own thread.. disclaimer: whatever is posted here is for information purposes only.
cases may have been appealed and judgements affirmed or rejected in higher courts.
get a lawyer.. expatbrit
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expatbrit
Court: England and Wales Court of Appeal
Year: 1999
Summary: Jehovah's Witness elder submits letter in support of serial sex offender.------------------------------------------------------
AM, R v. [1999] EWCA Crim 803 (23rd March, 1999)
No: 9805558 X3
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR JUSTICE MITCHELL
( acting as a judge of the CACD )
- - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
JUDGMENT
( As Approved by the Court )
- - - - - - - - - - - -
Crown Copyright
What had happened was that this appellant worked for a firm of builders, who, amongst other things, did roof repairs and, as would be normal in such circumstances, quotations would be given to potential customers. So it was that on 20th January 1998 this appellant went to the complainant's home, an appointment for him to do so having been made the previous evening. Having inspected the roof, he told her that some tiles would need to be replaced and that the cost to her would be £95. Her insurance policy had a £100 excess and accordingly she asked him, quite wrongly, to put up the price so that she would not have to pay for this herself. His response to that was that there had to be something in it for him. She agreed, thinking that what he wanted was extra money for himself. The appellant said he would get some cigarettes from his van and, when he had done so, they would come to an arrangement. He did go to the van but as he did so he put his arms round her and went to kiss her on the mouth. She turned her head away and he in fact kissed her on the cheek. At that time she was seven months pregnant and, according to the evidence of the police officer who was there at the time the appellant was arrested, that pregnancy was there for all to see.
The complainant said that she had frozen on the spot. The appellant went out the front door and came back from his van. She was, as one might well suppose, confused and shocked at that time. She accepted a cigarette from him. He lit his own cigarette but held his hand down low in order to light her cigarette. She put her hand on his arm in order to raise the cigarette lighter but he took hold of her arm and said, "No, you come down for it", and spoke to her in a suggestive manner. She left the room feeling anxious and fearful. The appellant told her that if the price was going to go up there had to be something in it for him. She said she was not prepared to do him any sexual favours and emphasised her pregnancy. Further suggestions of a sexual nature were made by this appellant before he left the house. As he had left the house, he said to her, "I don't do this very often as I would be out of a job". The police were informed subsequently. The appellant was arrested in his home.
When he was interviewed he admitted going to the house and that there had been discussion about repairs. He had joked about the woman propositioning him. He accepted that he had put his arm on her shoulder and kissed her, and he had asked her to masturbate him but she had declined.
The appellant was in fact due to have appeared before the Crown Court at Teesside on 26th June 1998. He did not appear and so it was that, a warrant having been issued in the ordinary way for his arrest, he in fact came before the court on 27th July and pleaded guilty in the way which we have already noted.
This appellant is now 56. Over a period of 14 years, between 1970 and 1984, he had committed offences of various kinds with considerable frequency. So far as this appeal is concerned, it is noteworthy that his convictions during that period included seven for indecent exposure and four for indecent assault. However, it needs to be emphasised that by the time he came before the Crown Court all those offences were spent and the last of them was 18 years ago.
The learned trial judge had before him a Pre-sentence Report dated 18th August prepared by Mr Warden from which it is clear that the appellant had made it plain, and had accepted to the author of that report, that his purpose in holding his cigarette lighter low down was to get this woman to masturbate him. His previous history of sexual offending is examined and set out in the Pre-sentence Report. It is unnecessary for us to go into the detail.
The author of that report carried out, as he was required to carry out, a risk assessment, and on that issue he concluded:
".....there is a risk of harm to female members of the community."
In dealing with that point during the course of his helpful submissions to us today, Mr Soppitt has pointed out that whilst that was the view of the author of that report, in fact the last time that this appellant had been involved in any offence of a sexual nature was 18 years ago.
The learned trial judge also had before him a letter from a prison officer saying that there had been no problems regarding discipline. There was also a letter from the prison medical officer saying that there were no relevant physical or mental illness issues to be raised, and there was also a letter from a Mr Robinson, an elder of the Jehovah's witnesses, who said that this appellant was attending Mr Robinson's Bible study courses and was helping to build up his Christian qualities and principles in his life.
The features of this case which cannot be ignored, as has been made plain by Mr Soppitt in his submissions to us, were that this was a complainant who was vulnerable and heavily pregnant and in her own home, and rightly, in our judgment, Mr Soppitt accepted that there was some degree of intimidation of her. However, it is important to note that once he had tried to kiss her on the mouth and that had not succeeded, he did not go further than that, and at the time when he was charged with this offence he made plain his abject apologies.
The submission is made to us that this sentence of three years was far too much and that sufficient credit was not given for the features which have been urged upon us, including the remorse shown, his plea of guilty and the fact that he had been out of trouble for so many years.
In passing the sentence the learned trial judge had said:
"This is a very serious breach of trust and, in my view, merits a sentence which is both deterrent and exemplary, to demonstrate to you and to others that conduct of this kind by tradesmen admitted to the house of a woman, where they are admitted to carry out repairs, will be regarded by the court as very serious."
We have considered the case on its totality and the decision of this Court is as follows. In our judgment the sentence passed by the learned trial judge was manifestly excessive. Accordingly the sentence of three years' imprisonment will be set aside and in its place, to reflect the particular circumstances of this offence, there will be a sentence of nine months' imprisonment. The order made under section 44 of the Criminal Justice Act relating to his release on licence will remain.
Under the Sexual Offenders Act 1997 the sentencing judge was required by law to specify the period during which this appellant's name should remain on the sex offender's register. By an oversight that was not done. We correct that matter now. His name will remain on the register for the period of seven years, which is the appropriate period relating to a sentence of nine months' imprisonment.
To that extent, and that extent alone, this appeal against sentence succeeds.
"Subject to subparagraph (3) below, paragraph (a)(iv) to (ix) does not apply where the victim of or, as the case may be, the other party to the offence was 18 or over;....."
My Lords, that is subject to the overriding section there at subsection (3) of that Schedule, where it reinstates the obligation to register where a defendant has been sentenced to a term of imprisonment for 30 months or more.
say ----
Mr Soppitt, in the last case we point out the reporting restriction that applies to cases of that sort, and we apply the reporting restriction to that effect. -
15
Expatbrit's miscellaneous legal stuff thread
by expatbrit ina repository for legal stuff relating to or involving jehovah's witnesses that doesn't warrant its own thread.. disclaimer: whatever is posted here is for information purposes only.
cases may have been appealed and judgements affirmed or rejected in higher courts.
get a lawyer.. expatbrit
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expatbrit
Court: England and Wales Court of Appeal
Year: 1998
Summary: Evidence of Child Abuse amongst Jehovah's Witnesses happening in the 1960's.
-------------------------------------------------Archibald MCGARVIE, R v. [1998] EWCA Crim 2264 (9th July, 1998)
No: 9800991/W3
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
JUDGMENT
( As Approved by the Court )
Crown Copyright
He is now 64 years old. The offences were made all the worse from the fact that the victims were two young girls who were his step nieces, but on the other side of the coin these were extremely old offences, all but the last having taken place during the 1960s.
The appellant, who appeals against that sentence by leave of the learned single judge, is a Jehovah's witness as are all the family. The offences started when the elder complainant was six. The appellant would place her on his knee, put his hand inside her underwear, tickle the outside of her vagina, even while other adults were in the room, although he managed to conceal what he was doing by enjoining his victim to silence. Later when the first victim was about seven and a half he used to guide her hand onto his penis and on one occasion while that was semi-erect and unclothed. This course of conduct went on for seven years until she was 13. The second complainant was also six years of age when the appellant started to assault her indecently in precisely the same fashion as he had done to her sister.
In 1973 matters came to a head. The complainant's parents suspected that something was wrong and the story came out from the girls, whereupon there was a family row which also involved formal complaints being made to the church elders. There were several meetings. The appellant denied any impropriety but he did later send a note which led the reader to suppose that he was admitting indecency. At that time no complaint was made to the police, but not surprisingly the rest of the family ostracised the appellant from their circle.
However in 1995, now fully adult, the first complainant, who had obviously suffered psychological damage through these experiences, sought psycho-sexual counselling and decided to report the matter fully to the church elders, they having been told only a part of the story before. After a lengthy formal meeting, which the appellant attended, he apologised but nevertheless the complainant decided to report the matter to the police out of fear that he still might be abusing others.
He was arrested and interviewed. He said that he had no recollection of the offences but the allegations must be true because the girls would not tell lies. The learned sentencing judge gave him credit for his plea describing it as "brave" in the circumstances.
The grounds of appeal are, in general, that the sentence was manifestly excessive. In particular we are urged to say that the learned judge failed to take sufficient account of the age of the offences. That, to a certain degree, is true, but there is a limit to which any person guilty of indecent assault can shelter behind the fact that it has taken his victim some time to recover from the trauma and the embarrassment and bring the matter out into the open; that is all part and parcel of the original offence. However it is a matter to which we must pay some attention, all the more so because the appellant might well have had reason to believe that the affair had been closed back in 1973.
It is further alleged that there had been no digital penetration and the pleas, the basis on which they were entered, made these offences at the lower end of indecent assault. We are not entirely able to agree with that because the most serious aspect of the matter lies in the age of the two complainants and the family relationship with the appellant. However, bearing in mind that the maximum sentence at the time was one of five years, it is submitted that the sentence failed to reflect fully the guilty pleas, described as we have already said as "brave".
The appellant is relatively elderly and, perhaps most important of all, we have been provided with medical reports which show that he is indeed gravely ill. This therefore seems to us to be one of those cases where it would not be unjust to apply the balm of mercy to what would otherwise be an appropriate sentence.
The learned single judge, in our respectful judgment, put the matter succinctly when he said in giving leave: -
15
Expatbrit's miscellaneous legal stuff thread
by expatbrit ina repository for legal stuff relating to or involving jehovah's witnesses that doesn't warrant its own thread.. disclaimer: whatever is posted here is for information purposes only.
cases may have been appealed and judgements affirmed or rejected in higher courts.
get a lawyer.. expatbrit
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expatbrit
Court: England and Wales Court of Appeal
Year: 1997
Summary: Evidence of child abuse going on amongst Jehovah's Witnesses in the 1970's
--------------------------------------------------------ELVET HARRIES, R v. [1997] EWCA Crim 1232 (16th May, 1997)
No: 9607465 Z4
CRIMINAL DIVISION
The Strand
London WC2
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
The Crown was not represented
JUDGMENT
( As Approved )
MR JUSTICE SMEDLEY: On 14th October last year at the Crown Court at Cardiff this appellant was sentenced for offences of indecent assault on a male, to which he had earlier pleaded guilty. He received sentences of two years' imprisonment on each count. On counts 2, 3 and 4, which related to one boy, the sentences were two years to be served concurrently. On counts 5, 6 and 7, which related to another boy, the sentences were two years to be served concurrently with each other by consecutively to the sentences on counts 2 and 3, and on counts 8 and 9 two years concurrently to each other, but consecutive to the above sentence, making a total sentence in all of six years. He now appeals against that sentence by leave of the single judge.
The appellant is aged 39. He has no previous convictions. He maintained when interviewed that as a boy he himself had been sexually abused, both by his brother and various members of the family. And in about 1973 when he was only 16 he commenced a course of conduct of indecent assault with a young boy who was then aged eight, and a son of a fellow member of the Jehovah's Witness church, to which the appellant belonged.
The indecent assaults took the form of mutual masturbation and oral sex. They continued until the victim was 15, by which time of course the appellant was in his early twenties.
Counts 2, 3 and 4 of the indictment represent activity from 1973 to 1981. It was said by the Crown in opening that the effect of these offences had been devastating on the victim, and indeed there was a statement served from that victim, now of course a man who is himself grown up married and with young children of his own, indicating the way in which his life had been affected. At the same time that he was involved in indecent assaults with that young man, the appellant was also indecently assaulting his second victim and counts 5, 6 and 7 are specimen counts representing activity with that second young man which began when he was six and continued until he was 14. They are of a similar nature involving mutual masturbation and oral sex. Finally counts 8 and 9 concerned the appellant's stepson. In his case they commenced in 1992 when the victim was seven, but they ended in July 1995 when he was nine. In his case the indecent assaults were acts of masturbation and on one solitary occasion an act of attempted oral sex.
The appellant was arrested on 20th June last year as a result of a complaint to the police by the first of the victims, who we do not find it necessary to name. In the course of being interviewed he admitted the offences, stating that he had been abused himself as a child and it seemed natural for him at that young age to do it to others. During the course of the interview he volunteered the information regarding the second victim who had not at that time made any complaint to anybody, and certainly not the police. Because of the nature of the complaints made by the man I have called victim no. 1, the police spoke to the appellant's stepson. He confirmed that he had been similarly assaulted. The appellant admitted assaulting him and said he had been unable to stop himself and acknowledged that he needed professional help.
There was before the court a pre-sentence report in which the author felt that the appellant appeared to have no awareness of the consequences of his offending on the victims and felt that the risk of his reoffending was high. There were two psychiatric reports, one by Dr Croy dated 26th September last year, and a further one from a consultant psychiatrist Dr Williams dated 8th October. Both of those psychiatrists felt that there was an element of risk to young boys when the appellant is released. It was suggested that he should be, if possible, in a prison when a Sexual Offender Programme is available, and we have been told that he is about to undergo such help. There were also before the court letters from the appellant's wife saying that it is her intention to stand by him and another letter, a rather moving letter from his stepson, the victim in counts 8 and 9, who also says that he wants his father home.
The learned judge described the offences as very serious. He observed that they covered nearly the whole of the appellant's adult life since he was 16. He gave him credit for the fact that he had pleaded guilty at the first opportunity and cooperated fully with the police. He accepted that the appellant had made efforts to apologise to the victims in counts 2 to 7 inclusive and indeed letters were produced which he had written to those two young men in April 1996 before the involvement of the police when his activities had been revealed within the community church where he regularly attended. The learned judge felt that it was desirable for the appellant to be placed somewhere within the prison system where he could take advantage of the Sex Offenders Treatment Programme. What is said today is that the total sentence passed was excessive. In granting leave the single judge observed that given the level of cooperation and the plea of guilty at the first opportunity it may be that the mitigation was not fully reflected in the length of the total sentence. As we have indicated, the appellant was very frank with the police in the course of his interviews. He admitted offences which had taken place some 20 years before. He identified the second of the victims in circumstances where it was unlikely that had he not done so any charges would have been brought in relation to his conduct with him and that, despite the unpleasantness of the incidents, there was no violence or threats used to any of the young men concerned, and a suggestion made that the sentences should run concurrently. That is not a course that we feel could properly be taken. These were three quite separate victims. The offences occurred over three distinct periods and in our judgment it is perfectly right that the sentence should be served consecutively. The only question is whether by imposing a sentence of two years' imprisonment for each of the offences the total of six years is too long. We feel that it is. In our view an appropriate sentence for each of the offences would be 18 months imprisonment, and the sentences on counts 2, 3 and 4 to be concurrent with each other and 18 months' imprisonment on counts 5, 6 and 7 to be concurrent with each over but consecutive to those passed on counts 2, 3 and 4 and the sentences on counts 8 and 9 to be 18 months' concurrently with each other, but to be served consecutive. The total sentence in those circumstances becomes one of four and a half years' imprisonment. To that extent the appeal is allowed. -
15
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Court: Supreme Court of British Columbia
Year: 1994
Summary: Custodial dispute. JW father seeks order to allow him to take children to meetings. DF'd mother disputes on grounds that doing so would harm her relationship with her daughters. (Note: Interestingly, the Court paid close attention to WT publications on disfellowshipping).
------------------------------------------------------------------------------Date of Release: October 4, 1994 No. 2419
Nelson Registry
In the Supreme Court of British Columbia
Between: )
)
MARY FRANCES HEWITT ) REASONS FOR JUDGMENT
)
PETITIONER ) OF THE HONOURABLE
)
And: ) MR. JUSTICE HUNTER
)
JEFFREY BOB HEWITT )
)
RESPONDENT )
Appearances:
DONALD W. SKOGSTAD - Counsel for the Petitioner
ROD McLEOD - Counsel for the Respondent
Date of Hearing: August 24, 1994
At issue is the nature and extent of the respondent father's right of access to the two youngest children of the marriage, their daughter, Carinna, born September 7th, 1984, and their son, Adriel, born April 8th, 1986. This is a perplexing and difficult matter. The evidence suggests that both parties are good parents who enjoy an excellent relationship with these two youngsters.
The parties were married in December of 1974. They separated on October 25th, 1991 and were divorced on September 27th, 1993. As I understand it, two older children, Nathanael, born April 5th, 1976, and Jacob, born December 29th, 1977, reside with their father.
The parties have joint custody and joint guardianship of all children. Under the terms of a separation agreement dated August 19th, 1993, the primary residence of the eldest, Nathanael, is with the father and the primary residence of the other three children is with the mother. At some later date and by consent, the second child, Jacob, went to live with his father and that continues.
At the time of the birth of the oldest child, Nathanael, both parents were members of the Jehovah's Witness faith. In fact, all four children have been raised in the Jehovah's Witness faith.
As I have mentioned, the parties separated on October 25th, 1991. The mother has, for some time, been involved in a relationship with another man, although her evidence is that they do not live together. In September of 1993, the mother was "disfellowshipped" from the Jehovah's Witness church to which the parties and their children belonged.
On November 2nd, 1992, a consent order was filed confirming the terms of the separation agreement as to joint custody and guardianship.
One year later, on November 4th, 1993, the father filed a notice of motion seeking sole custody of the four children with supervised access to the mother. On November 26th, 1993, Master Joyce made an order requiring the parties to attend before a Family Court Counsellor to determine the issues in dispute and to mediate. On December 9th, 1993, the father filed a notice of motion seeking sole custody of the children, Carinna and Adriel. On January 13th, 1994, this court ordered that the father have access to the children Carinna and Adriel every Wednesday from the close of school until Thursday at 5:00 p.m. until further order. On July 11th, 1994, this court by order provided that the father have certain additional access in the months of July and August of this year and also provided that the father have access to Carinna and Adriel from 4:00 p.m. on Friday until 4:00 p.m. on Sunday each second weekend commencing August 27th, 1994. That order also provided that the father, while exercising access to the children, Carinna and Adriel, was not to cause or permit the children to attend meetings of the Jehovah's Witnesses until further order.
The concern of the mother is that if the father is permitted to take these two young children to Jehovah's Witness Church proceedings, in the circumstance of her having been "disfellowshipped" by the church, that the effect would be to destroy the otherwise sound and loving relationship which they currently enjoy with their mother. Her concern is that by their attending the church, they will be further indoctrinated as to what their relationship should be to their "disfellowshipped" mother and that it is probable that this will have a serious detrimental effect on that relationship.
The mother, in her affidavit filed on December 9th, 1993, attaches as Exhibit C, a number of Jehovah's Witness publications which purport to advise and direct members as to how they should treat a former member who has been expelled. In an issue of the Jehovah's Witness publication The Watchtower dated September 15th, 1981, there is an article entitled "Disfellowshipping __ how to view it." At page 24, the following appears:
" SPEAK WITH A DISFELLOWSHIPED OR DISASSOCIATED PERSON?
Would upholding God's righteousness and his disfellowshiping arrangement mean that a Christian should not speak at all with an expelled person, not even saying 'hello'? Some have wondered about that, in view of Jesus' advice to love our enemies and not 'greet our brothers only.' __ Matt. 5:43-47.
Actually, in his wisdom God did not try to cover every possible situation. What we need is to get the sense of what Jehovah says about treatment of a disfellowshiped person, for then we can strive to uphold His view. Through the apostle John, God explains:
' Everyone that pushes ahead and does not remain in the teaching of the Christ does not have God. . . . If anyone comes to you and does not bring this teaching, never receive him into your homes or say a greeting to him. For he that says a greeting to him is a sharer in his wicked works. '
The apostle who gave that wise warning was close to Jesus and knew well what Christ had said about greeting others. He also knew that the common greeting of that time was 'Peace.' As distinct from some personal 'enemy' or worldly man in authority who opposed Christians, a disfellowshiped or disassociated person who is trying to promote or justify his apostate thinking or is continuing in his ungodly conduct is certainly not one to whom to wish 'Peace.' (1 Tim. 2:1, 2) And we all know from our experience over the years that a simple 'Hello' to someone can be the first step that develops into a conversation and maybe even a friendship. Would we want to take that first step with a disfellowshiped person? "
On p.25 of the same publication, the following appears:
" NOT SHARING IN WICKED WORKS
All faithful Christians need to take to heart the serious truth that Got inspired John to write: ' He that says a greeting to [an expelled sinner who is promoting an erroneous teaching or carrying on ungodly conduct] is a sharer in his wicked works. ' __ 2 John 11.
Many of Christendom's commentators take exception to 2 John 11. They claim that it is 'unchristian counsel, contrary to the spirit of our Lord,' or that it encourages intolerance. Yet such sentiments emanate from religious organizations that do not apply God's command to 'remove the wicked man from among yourselves,' that seldom if ever expel even notorious wrongdoers from their churches. (1 Cor. 5:13) Their 'tolerance' is unscriptural, unchristian. __ Matt. 7:21-23; 25:24-30; John 8:44.
But it is not wrong to be loyal to the righteous and just God of the Bible. He tells us that he will accept 'in his holy mountain' only those who walk faultlessly, practice righteousness and speak truth. (Ps. 15:1-5) If, though, a Christian were to throw in his lot with a wrongdoer who has been rejected by God and disfellowshiped, or has disassociated himself, that would be as much as saying 'I do not want a place in God's holy mountain either. ' If the elders saw him heading in that direction by regularly keeping company with a disfellowshiped person, they would lovingly and patiently try to help him to regain God's view. (Matt. 18:18; Gal. 6:1) They would admonish him and, if necessary, 'reprove him with severity.' They want to help him remain 'in God's holy mountain.' But if he will not cease to fellowship with the expelled person, he thus has made himself 'a sharer (supporting or participating) in the wicked works' and must be removed from the congregation, expelled. __ Titus 1:13: Jude 22,23; compare Numbers 16:26. "
On page 22 of this publication is a pictorial of a number of people sitting around a table with food on it at mealtime. Below it is the caption " 'Not even eating with' a disfellowshiped person."
The father, in paragraph 6 of his affidavit filed January 5th, 1994 denies the mother's allegation that she was disfellowshiped at his insistence. He says, in part, in that paragraph:
" . . . . It is not by the insistence of any one person or group of persons that one can be disfellowshipped. It is only after extensive meetings by a body of elders that such a recommendation can be made. If a decision is made to disfellowship a member, a discreet announcement is made to the congregation. It would not have been possible for me to arrange or influence in any way the disfellowshiping of the Petitioner, nor would I have known at which meeting it would have been announced. I certainly did not arrange for the children to be present at the meeting where the Petitioner was disfellowshipped. "
The father goes on to say in that affidavit that at no time would he condone the indoctrination of the children so they would have nothing to do with their mother.
I have had the benefit of viewing the 3-page report of Mr. Busby, Family Court Counsellor, dated June 23rd, 1994. He refers to having interviewed the parties, the four children, and numerous others referred by the parties, and says there was never any indication that either parent was unfit or incapable of caring for or providing for their children. He reported favourably on interviews with teachers at the schools attended by the two younger children.
Mr. Busby makes comments with regard to this issue on page 2 of his report which are helpful and which I reproduce below:
" Both Nathanael and Jacob are members of Jehovah's Witnesses and stressed their anger and discomfort with their mother's situation is related solely to the situation the younger children find themselves in and the problems that Mrs. Hewitt has created for their father by severely restricting access by Carinna and Adriel to their father and the meetings with other Jehovah's Witnesses.
I interviewed several members of the Jehovah's Witnesses who assure me the children are instructed to respect and honour their mother as blood ties may never be severed. I am further assured by those members the children are not taught to shun or avoid their mother. Disfellowshipping is a means of disciplining a member of the Jehovah's Witnesses who has seen fit to leave the group or denounce their teachings. No member of the group may have any contact with a person who has been disfellowshipped unless they happen to be elders. Should a person who has been disfellowshipped speak to or attempt to contact any member the elders will contact that person with a view to determine whether or not that person wishes to return to become a practicing Jehovah's Witness.
One Jehovah's Witness expressed her anguish at the loss of a good friend Mary Hewitt but stated she must not have contact with that person because of the teachings of Jehovah and the group.
It is difficult to accept that two children as intelligent as Carinna and Adriel would not understand the concepts and practices of disfellowshipping and relate them to their mother's situation. As one Witness described it, disfellowshipping in Mrs. Hewitt's case relates to her immoral lifestyle. The confusion that would result with the teachings of Jehovah's Witnesses to honour and respect your mother but have nothing to do with someone who has been disfellowshipped could create problems for Carinna and Adriel in the relationship with their mother. "
Also, near the bottom of page 2, Mr. Busby states:
" Both Adriel and Carinna were clear that they wish to spend more time with their father. Adriel stated he wished to serve Jehovah, go to the meetings, and learn more about Jehovah. Carinna wants to do more things with her father including going to meetings because she likes learning about things that they teach and she enjoys being with friends who attend the meetings. Both children enjoy the time they spend with their father in the family home playing in the house and around the property as well as spending time with their brothers and with neighbouring friends. "
In concluding his letter, Mr. Busby makes certain recommendations with regard to access, but is silent on the question of whether these two young children should be precluded from attending church meetings during the father's access time.
Counsel for the father has referred me to Young v. Young, unreported, October 21, 1993) No.22227, (S.C.C.), and particularly to the reasons for judgment of McLachlin J. speaking for the majority at page 25:
" . . . . A custody order does not, however, give the custodial parent the 'right' to limit the access parent's ability to share his or her religious views with the child, unless that is shown on the evidence not to be in the child's best interest. Viewed thus, the notions of custody and access unite in a common purpose of promoting the child's best interests. "
Significantly, McLachlin J. goes on to say in the next paragraph:
" The majority held that an access parent's conduct with his child may be limited where the evidence shows the existence of, or potential for, real harm to the child, or where the child does not consent to the instruction. "
Reference to "the majority" in the last paragraph is a reference to the judgment of the Court of Appeal in that case.
In another decision of the Supreme Court of Canada handed down on the same day as Young v. Young, that court reached a different conclusion in somewhat different circumstances. I refer to D.P. v. C.S. unreported, (October 21, 1993) No. 22296 (S.C.C.). The parties co-habited for a period of three years and then ceased living together and at that time agreed in writing that the respondent would have legal custody of their child and the appellant would exercise access rights. This agreement was ratified by judgment of the court. Subsequently, the appellant began practising the Jehovah's Witness religion. The respondent, a Roman Catholic, objected to the appellant on access visits indoctrinating this 3½-year-old child in the Jehovah's Witness religion. The trial judge referred to the appellant's "religious fanaticism" which he found to be disturbing to the child. The trial judge directed that access by the appellant should continue and the appellant should be allowed to continue to teach the child the Jehovah's Witness religion, but should not have the right to indoctrinate the child continually with the precepts and religious practices of Jehovah's Witnesses and could not take the child to certain activities in which that church engaged. That judgment was upheld on appeal, and again in the Supreme Court of Canada.
My paramount duty is to consider what is in the best interests of the children. I have concluded that it is in their best interest to limit the activities of the father with these children during the access times. I am concerned about the potential for real harm to the children of interference with their relationship with their mother which may result from their attending, with or without their father, church services and other activities of that faith. The father shall be entitled to continue to teach these children in the Jehovah's Witness faith but they shall not be allowed to attend Jehovah's Witness church services, ceremonies or conferences, or to do door-to-door church communications or engage in like matters. I recognize that as the children grow older they will reach an age where they are capable of making a decision on the extent to which they will abide by the strictures of this faith, particularly that of the disfellowship of their mother. Accordingly, I make this order with a right in the father to apply to vary after two years. The dates and times of access by the father will remain as previously ordered.
I make no order as to costs.
"R.B. Hunter"
HUNTER J.
Kamloops, B.C.
October 3, 1994 -
15
Expatbrit's miscellaneous legal stuff thread
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cases may have been appealed and judgements affirmed or rejected in higher courts.
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Court: New South Wales Supreme Court.
Year: 1999
Summary: Blood transfusion dispute over 7 month old baby with Leukemia.
------------------------------------------------------------------------------
Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 (19 November 1999)
Last Updated: 1 December 1999
NEW SOUTH WALES SUPREME COURT
CITATION: Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 revised - 01/12/99
CURRENT JURISDICTION: Equity
FILE NUMBER(S): 4636/99
HEARING DATE{S): 12/11/1999, 19/11/1999
JUDGMENT DATE: 19/11/1999
PARTIES:
Director General of the Department of Community Services (Plaintiff)
"BB" (Defendants)
JUDGMENT OF: Santow J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
M Adofaci (Sol/Advocate) (Plaintiff)
S Teece (Sol) (Defendants)
SOLICITORS:
Anthea Tomlin (Senior Sol) Crown Solicitor (Plaintiff)
Stephen Teece (Defendants)
CATCHWORDS:
SUPREME COURT -- Inherent jurisdiction in relation to welfare of children -- Blood transfusion for an infant where parents have strong religious convictions to the contrary -- Difference between statutory power for emergency medical intervention under s20A of Children (Care and Protection) Act 1987 and orders sought to alleviate an appreciable risk of serious damage to the child's health -- Extent of Court's jurisdiction and factors affecting the exercise of its discretion, as arise in the context of a life threatening condition -- form and scope of orders.
ACTS CITED:
Children (Care and Protection) Act 1987 s20A
DECISION:
Orders made authorising medical treatment by way of blood transfusion.
JUDGMENT:
REVISED -- 1 December, 1999
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY
SANTOW J
No. 4636/99
DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES
Plaintiff
"BB"
Defendants
JUDGMENT -- ex tempore
19 November 1999
INTRODUCTION
1 In relation to an infant of seven months "GG" with acute lymphoblastic leukaemia ("ALL") diagnosed on 2 November 1999, the director General of the Department of Community Services ("DOCS") seeks two orders. The first is an order allowing the Executive Director of the New Children's Hospital at Westmead ("the Hospital") to be authorised to render medical treatment, including the transfusion of blood or blood products and a reinfusion of the child's own blood. I will describe that as "order 1".
2 The second is an order that the Defendants, parents of baby "GG", comply with any reasonable direction given by the qualified staff of the Hospital as to treatment and attendance for treatment of "GG". I shall describe that as "order 2".
3 The parents I shall describe collectively as "BB", and the infant as "GG". I do so to preserve the confidentiality of the child's situation, being satisfied that this is necessary for the child's welfare.
4 "BB" are members of the Jehovah's Witnesses. Through their legal representatives and by affidavit, they have made clear that for deeply held religious reasons and also as a matter of civil liberty, they would be opposed to any form of blood transfusion or reinfusion of the child's own blood. It has been made clear that this opposition extends particularly to orders 1 and 2 in their present form. Without prejudice to that position, the Defendants have indicated that a form of order 1 modified to make it more precise and less onerous, being in the form appended to this judgment, would be less objectionable though still opposed. This is particularly insofar as it avoids any suggestion that authorisation is required for treatment not involving blood transfusions, which the parents fully support. They oppose order 2 because they see it as both unnecessary and as "stripping the parents of any right to have any input into the care of their child".
5 As to order 2, I have particularly noted the parent's devoted concern for their child and the fact that to date the parents have brought their child to a hospital when first there was concern about "GG's" health. They have fully co-operated in the treatment regime, though making absolutely clear their opposition to blood transfusions. I have given consideration to a modified form of order 2 that ensures the parents are consulted if available and which acknowledges that devoted concern. Furthermore, the order would come into operation only if there were a failure to comply with any reasonable direction. The Defendants' legal representatives still oppose such an order, but agree it is less objectionable in that modified form.
SALIENT FACTS
6 Baby "GG" was born 19 April 1999. On 2 November 1999 "GG" was diagnosed with Acute Lymphoblastic Leukemia ("ALL") and was admitted to The New Children's Hospital at Westmead.
7 Tests conducted on 3 November 1999 indicated that the child was at a "high risk of morbidity".
8 On 3 November 1999 Dr Peter Shaw, indicated to the Defendants that "GG" would need transfusions of blood and blood product if she was to be treated to the internationally recognised protocol for treatment of infant ALL.
9 The Defendants indicated that they would not give permission for such transfusions. The parents are Jehovah's Witnesses and would not consent to the blood transfusions.
10 On the morning of 4 November 1999 "GG" was in a critical condition and Dr Shaw decided that a blood transfusion should be performed. It was so performed. It is not in dispute that s20A of the Children (Care and Protection) Act 1987 authorised that medical treatment. This is on the basis of Dr Shaw's "opinion that it [was] necessary, as a matter of urgency, to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's health".
11 DOCS became involved on 5 November 1999.
12 The Defendants have indicated to doctors treating their daughter that they would prefer each situation where transfusion may take place to be judged separately and that their expressed wishes in relation to transfusions only be overrode in emergency situations.
13 The treatment protocol established for "GG" does not allow for that kind of crisis management of her condition but rather provides a regime to avert such emergency situations where possible.
14 Platelet (a blood component) transfusions are a necessary part of the preventative medicine involved in the protocol.
15 There is considerable risk, according to Dr Peter Shaw, that without transfusions, a fatal haemorrhage may occur (e.g. in the brain).
16 It is not in dispute that the alternative treatment held out by the parents as available in Perth at the King Edward Memorial and Princess Margaret Hospital is essentially the same as that at the Hospital as it is now carried out. That is to say, as confirmed by the principal treating doctor, Dr Shaw, the regime in place at the New Children's Hospital specially designed for baby "GG" is a conservative one so far as blood transfusions are concerned respecting the parents' concern in that regard, though placing the welfare of the child as paramount. In particular, the Hospital has adopted so far as it can the supportive therapy which "BB" as parents have put to the hospital including the use of EPO (erythro poietin) and the potential use of an as yet unlicensed product interleukin 11 to encourage the natural generation of platelets. This is subject in the latter case to there being no undesirable side-effects for "GG" including counteraction of the chemotherapy treatment. It is fair to say that the parents "BB" acknowledge with gratitude that the Hospital has in that way shown sensitivity to their concerns.
17 It is also not in contention that to transport "GG" to Perth, certainly inside of the next month and possibly for some time after, would endanger "GG's" life or health and in any event would not be acceptable to the Perth hospital.
RESOLUTION OF THE ISSUES
18 It is well settled that this Court has a common law jurisdiction as parens patriae to safeguard the welfare of children and it is that jurisdiction which the present application invokes. It extends to authorising medical treatment for an infant, even against the parents' wishes (Department of Health and Community Services v J.W.B. and S.M.B. ("Marian's case") (1991-2) 175 CLR 218 by way of exception to what is described as the right to personal integrity. But that jurisdiction is to be exercised "in the best interests of the child" Dalton v Skuthorpe (McLelland J, SCNSW, 27 November 1989, unreported). The paramount concern is the best interests and welfare of the child.
19 The Defendants in their comprehensive submissions for which I express my indebtedness, have pointed out that authorisation for a medical procedure of the sort here contemplated of blood transfusions, requires that the Court be firmly satisfied upon convincing evidence that such procedure is justified; Briginshaw v Briginshaw (1938) 60 CLR 336. The Court should in exercising its judgment in the matter be conscious that the orders sought override the conscientiously held belief of the parents. Nonetheless the Court must place the welfare of the child as paramount.
20 It is clear from the evidence that unless the regime in place permits blood transfusions, "GG's" chances of survival are seriously impaired and her life placed in jeopardy; this is even with the regime of supportive therapy now in place. This is because one effect of the chemotherapy on a child with "GG's" condition is the likelihood that it will bring about a reduced haemoglobin and platelet level. There is an appreciable risk of serious damage to the child's health if such intervention is not permitted until an emergency situation occurs, as Dr Shaw's evidence makes clear, as I explain.
21 For the Defendants it was said that s20A of the Children (Care and Protection) Act 1987 (NSW), already invoked on 4 November 1999 adequately safeguarded the situation. This was because that Act permits intervention by way of blood transfusion where the medical practitioner is of the opinion that it is necessary as a matter of urgency to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's health.
22 However, the orders sought, for reasons elaborated by Dr Shaw in his evidence before me, go further than this in seeking to alleviate appreciable risk of serious damage to the child's health. According to Dr Shaw, whose evidence I accept, to leave matters to the point where intervention was only possible under s20A ran firstly the risk that the intervention would be too late. Secondly, it left the child at continuing risk of cranial haemorrhage once platelets dropped to a low enough level, a condition that could occur without warning and with fatal consequences. Essentially, what Dr Shaw explains is that the regime is not just for life-saving intervention but to avoid the need for it by removing the life-threatening event before matters reach that extremity.
23 The Defendants in their comprehensive submissions relied upon a number of authorities and in particular to the case of Re Marion (No. 2) (1993-4) 17 FamLR 336, where Nicholson CJ (at 351) discusses the factors that may be relevant in deciding the best interests of the child, in cases where orders concerning a particular medical procedure are sought. He sets out these factors in terms conveniently summarised below:
(i) the particular condition of the child which requires the procedure or treatment;
(ii) the nature of the procedure or treatment proposed;
(iii) the reasons for which it is proposed that the procedure or treatment be carried out;
(iv) the alternative courses of treatment that are available in relation to that condition;
(v) the desirability of and effect of authorising the procedure or treatment proposed rather than the available alternatives;
(vi) the physical effects on the child and the psychological and social implications for the child of:
(a) authorising the proposed procedure or treatment
(b) not authorising the proposed procedure or treatment
(vii) the nature and degree of any risk to the child of:
(a) authorising the proposed procedure or treatment
(b) not authorising the proposed procedure or treatment
(viii) the views (if any) expressed by:
(a) the guardian(s) of the child;'
(b) a person who is entitled to the custody of the child;
(c) a person who is responsible for the daily care and control of the child;
(d) the child;
to the proposed procedure or treatment and to any alternative procedure or treatment."
24 It should be noted however that that case involved compulsory sterilisation of an intellectually disabled child rather than the kind of considerations that may dictate blood transfusion for a child whose life is at risk without it. While the factors to be taken into account may not be significantly different, the application of those factors is in the present context affected by the life-threatening consequences if no such medical treatment were authorised. It is in that context that I have considered those factors, in particular taking into account the matters dealt with in para 29 below. I conclude that none of these factors are such as to persuade me against modified orders of the kind I have foreshadowed, having reached the necessary level of satisfaction as to the best welfare of the child.
CONCLUSIONS
25 It follows from what I have said that I am satisfied that order 1 should be made, though in the qualified form that I have earlier indicated.
26 As to order 2, I have given considerable thought to whether it is justified in circumstances where the parents have to date at all times complied with the reasonable directions of the Hospital and whose devotion is not in doubt. They indeed initiated the treatment that has led to the present application, though perhaps without appreciating in the first instance the likelihood of blood transfusions. The concern which I have if no such order is made is that it may place the parents in an agonising dilemma, particularly at the stage the child may no longer be in hospital but receiving treatment as an outpatient. That dilemma could arise if the child displayed symptoms which led the parents to conclude, correctly, that a blood transfusion was likely. The parents through their legal advisers have made clear their deep convictions in such circumstances against a blood transfusion though they have properly acknowledged that they would respect such a Court order.
27 Nor do I think that it is fair to DOCS, the Hospital, or the parents, nor is it compatible with the paramount welfare of the child, to have no version at all of order 2, and instead place a burden on the first two parties to seek such an order as and when the occasion arises. Apart from the strain on those involved, the welfare of the child could be jeopardised by the delay entailed in seeking a further order. However, I do agree with the parents as to consultation. I have so expressed it by referring to consultation with the parents "if available" having regard to the need to avoid delay if this might put at risk the health of the child.
28 In all the circumstances, I believe a modified form of order as appended to this judgment is warranted, primarily for the reasons I have mentioned but also recognising that such an order may actually assist all concerned in that difficult situation.
29 I should conclude by noting the concerns that have been put by the father in his affidavit of 19 November 1999 and repeated and developed in the Defendants' helpful written submissions. These concerns include matters going to the welfare of the child brought up in a household of adherents to the beliefs of the Jehovah's Witnesses though the father was careful to emphasise, and I of course accept, that the parents would love the child no less if a blood transfusion were to have to take place. These concerns also include civil liberties and the medical risks inherent in blood transfusions. I have carefully weighed those concerns but conclude that the paramount welfare of the child is best served by the orders that I have now to make. In modifying the orders sought by DOCS I acknowledge that they were properly concerned to do what they considered best in the circumstances.
ORDERS
30 1. That the Executive Director of the New Children's Hospital at Westmead ("the Hospital") be authorised to carry out, by
(a) any qualified member of the staff of the Hospital; or
(b) any qualified medical practitioner visiting the Hospital;
the following:
(i) the transfusion of blood or blood products and the reinfusion of the child's own blood; and
(ii) any treatment ancillary to (i)
that any qualified medical practitioner on the staff of the Hospital or any qualified medical practitioner visiting the Hospital, believes at the time to be necessary to prevent serious damage to the health of the child "GG", including the alleviation of appreciable risk of serious damage to the child's health.
2. That in the event that the First and Second Defendants fail to comply with any reasonable direction following consultation with the Defendants if available, given by any qualified member of the staff of the Hospital or any qualified medical practitioner visiting the Hospital from time to time as to the treatment and attendance for treatment of "GG" (it being acknowledged at all times that the First and Second Defendants have so complied) then it is ordered that they do so comply, such order taking effect only in the event of such failure as aforesaid.
3. Liberty to apply on reasonable notice.
LAST UPDATED: 01/12/1999 -
15
Expatbrit's miscellaneous legal stuff thread
by expatbrit ina repository for legal stuff relating to or involving jehovah's witnesses that doesn't warrant its own thread.. disclaimer: whatever is posted here is for information purposes only.
cases may have been appealed and judgements affirmed or rejected in higher courts.
get a lawyer.. expatbrit
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expatbrit
Court: Supreme Court of British Columbia
Year: 1997
Summary: Physically and mentally ill man goes to court to get mother's will (making Watchtower chief beneficiary) changed. (note: that this situation had to be resolved in court tells you quite a bit about the Watchtower's attitude to $$$ as opposed to people.)
------------------------------------------------------------------------Date: 19970911
Docket: S12609
Registry: Nanaimo
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
ANDREW WILLOTT
PLAINTIFF
AND:
TOM MOSCRIP,
EXECUTOR OF THE WILL OF THE DECEASED,
IRIS WILLOTT,
STEPHEN ONWOOD,
THE WATCHTOWER BIBLE & TRACT SOCIETY OF CANADA
and
THE CEDAR CONGREGATION OF JEHOVAH'S WITNESSES
DEFENDANTS
REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE DOWNS
Counsel for the Plaintiff: Anne Sheane
Counsel for the Defendant Will W. Geselbracht
Tom Moscrip: No Appearance at Trial
Counsel for the Defendant
Stephen Onwood: D. Peter Ramsay
Counsel for the Defendant
The Watchtower Bible & Tract
Society of Canada: Grant Fedorak
Counsel for the Defendant
The Cedar Congregation of
Jehovah's Witnesses: Spencer Bowers
Place and Dates of Trial: Nanaimo, B.C.
June 9-13, 16-19 and 26,1997
Background
[1] Andrew Willott was the only child of Iris and Oliver Willott. He is now 51. His father died in April of 1988 leaving his estate to his wife. Ms. Willott died on September 23, 1995. The net value of her estate is approximately $496,000; of that amount $328,950 is the value of her interest in two separate pieces of real property held by the estate.
[2] In her will, Ms. Willott left her son her one-half interest in a piece of property on which there are some rental units ("Lot 1"). Oliver Willott had, about two years before his death, transferred Lot 1 to Andrew Willott and Iris Willott. Ms. Willott also bequeathed $10,000 in cash to her son. Andrew Willott's share of his mother's estate, then, is valued at $88,150, the half interest in Lot 1 being valued at $78,150.
[3] The residue of Ms. Willott's estate is to be distributed as follows:
3/5ths to the Watchtower Bible & Tract Society of Canada ("the society");
1/5th to the Cedar Congregation of Jehovah's Witnesses ("the congregation"); and
1/5th to Stephen Onwood.
[4] Andrew Willott brings this action under s.2 of the Wills Variation Act, R.S.B.C. 1996, c.490, asserting that his mother did not make adequate provision for his proper maintenance and support.
[5] The plaintiff was born in England on April 11, 1946. When he was about 18 months old the family immigrated to Canada. They lived with Andrew Willott's "Great-uncle Oliver" for a number of years in his farm house located in North Oyster, Ladysmith, on Vancouver Island. The farm property ("Lot 102") was where Ms. Willott was living at the time of her death, and is the other piece of real estate which forms part of her estate.
[6] Iris and Oliver Willott became Jehovah's Witnesses in about 1952. From then, until their respective deaths, they were devoted and active members of their congregation and the society. In due course Oliver Willott became an elder of the congregation and was, at the time of his death, its presiding overseer.
[7] When Andrew Willott was about five years old, his father purchased Lot 1. The family had moved away from Lot 102 for a time but moved back there after "Great-uncle Oliver" died. Lot 1 and Lot 102 are adjacent properties. Lot 102 is approximately 25 acres. The size of Lot 1 is not directly in evidence, but my impression is that it is less than 2 acres.
[8] The Willott family operated this small farm and Oliver Willott also worked in businesses away from the farm. Andrew Willott said he had a marvellous relationship with his Uncle Oliver. He described happy, busy times with him. He said his relationship with his parents was good "for the first five years." After saying that, he described an incident when he was about six when he was strapped at school for getting into trouble, then strapped again at home by his father for the same incident. In cross-examination, Mr. Willott said, "all my life my parents had nothing to do with me other than what they felt they had to do."
[9] Andrew Willott testified that his Uncle Oliver "left a will, but not on paper." He said that his uncle, in the presence of other men, stated that 25 acres of his property was to go to Iris Willott, 25 acres was to go to Oliver Willott's sister, and 10 acres (a portion of which is now contained in Lot 1) was to go to Andrew Willott. He said the men then "all spit on their hands and rubbed them on the ground."
[10] It is clear that Lot 102 has been in the name of Oliver Willott or Iris Willott since Uncle Oliver's death. However, the property which was "willed" to Andrew Willott by Uncle Oliver did not pass to him, nor was it in the name of either of Andrew Willott's parents until a portion of it was purchased by Oliver Willott from George Windel in December, 1959. The only relevance to this action of the ownership of the properties prior to Iris Willott's death is the psychological effect and the expectation that Uncle Oliver's "will" left with Andrew Willott. He acknowledged that the evidence he gave on discovery was true: "I think that the reason I'm entitled to the land is I'm the only heir."
[11] There is no doubt that Andrew Willott did much work and many chores around the farm during his childhood and youth. His parents were both hard working, too.
[12] Andrew Willott went to school as far as grade 10 and then left to go to work. His first full-time job was in a mill in 1964 or 1965 and he went long-shoring in 1966 - 1967. For most of the time he worked at these jobs he continued to live at home and he believes he paid room and board of about $150 a month.
[13] In about 1966, Andrew Willott became engaged to Rita Dawson. They had met when they were children and, from the time Rita Dawson was about 12 years old, her family and the Willott family were in the same congregation. Andrew Willott eventually broke off the engagement because he thought he was too young to marry.
[14] During the same time, in the mid-sixties, a lot of work was done on both Lot 1 and Lot 102. A second garage was built. A duplex was built on Lot 1 to be rented out and after that a single family rental house was built on Lot 1. Andrew Willott helped his father considerably with these projects.
[15] In 1967, Andrew Willott went to trade school for 11 months. Thereafter, his lifestyle became transient. Andrew worked from time to time but was frequently on welfare. He stayed on the farm whenever he wished but spent time in Vancouver and in the United States. Mr. Willott testified that in 1969 he was arrested for having "two joints" and went to jail for nine months. It was while in lock up during this period of imprisonment, Mr Willott testified, that he experienced hallucinations for the first time.
[16] Upon his release from gaol Andrew Willott's life continued in much the same pattern: work, welfare, travel, farm, trouble with the law, bouts with mental illness. In 1973, he testified, a judge sent him to Riverview Hospital when he said he would commit suicide if sent to Oakalla. The following is a portion of the discharge note from that hospital stay:
The clinical impression which was formed here was that of a man of superior intelligence with a passive aggressive personality disorder. He indicated clearly that he had been involved in a fatal accident several years before when he had been driving his sports car too fast. Antisocial comments were frequent. There was no evidence of any mental illness. At the end of his period of observation he was returned with the comment that he was able to instruct counsel and fit to stand trial. Patient is therefore today, October 3, 1973 discharged in full and was returned to Oakalla. No medications, no referral. Patient deemed capable.
DIAGNOSIS: Personality Disorder (301.2) (Schizoid)
RESULT: Improved.
DRUG/ALCOHOL
ADDICTION: Drug addiction.
[17] From 1975-1985 Andrew Willott lived on the farm and received welfare. Part of the money he received went to his parents for food and rent. He also did chores and other tasks around the farm. He saved enough money to fix up and insure a vehicle and went to California where he worked repairing vehicles. Together with a friend he made plans to open a garage. As these plans were taking shape, Oliver Willott phoned to tell his son that he had cancer. Andrew Willott returned to the farm and once again went on welfare; he said he gave his cheques to his mother who bought his clothes and personal items as well as provided his food and spending money. In the last year before Oliver Willott died, Andrew Willott helped with his care including carrying him from his bed to the bathroom and the like.
[18] After Oliver Willott's death in April of 1988, Ms. Willott turned to Stephen Onwood for assistance with financial and other matters. He was a member of her congregation and he and his family had known the Willott's well from the time they arrived in Canada from England in about 1972. Mr. Onwood taught Ms. Willott how to write a cheque and helped her manage her accounts and the like. Ms. Willott trusted him and was close not only to him but to his wife and young children. It is clear from the evidence that Ms. Willott thought of Stephen Onwood as a second son.
[19] In 1989, Ms. Willott was diagnosed with cancer. She had surgery in the summer of that year following which Rita Dawson came to live at the farm with her. Since the 70's, whenever Andrew Willott stayed at the farm he did not stay in the farmhouse but in other buildings on the property or in vehicles parked on the property. When Rita Dawson came to live at the farm, Andrew Willott was living in a trailer on Lot 1 as he had been since his return during his father's illness. He took many meals at the house with his mother and Ms. Dawson.
[20] On November 8, 1989, Iris Willott made a will. It was substantially different from the will which she later made which is the will giving rise to this action. The principal provisions of the 1989 will were as follows:
1. Stephen Onwood executor; Tom Moscrip alternate executor.
2. Lot 102 to Rita Dawson; if she predeceases testatrix to Earle Dawson (son of Rita Dawson).
3. Bank accounts to Rita Dawson; if she predeceases testatrix to Earle Dawson.
4. Securities to Stephen Onwood, if he predeceases testatrix to Cecelia Dawson (wife of Stephen Onwood).
5. Chattels to Rita Dawson, if she predeceases testatrix to Stephen Onwood.
6. Life interest in net income of Lot 1 to Andrew Willott.
7. Residue to Stephen Onwood.
[21] The specific provision of the life interest to Andrew Willott read as follows:
To transfer to my Trustee all my title and interest in the property known as Lot 1, District Lot 45, Oyster District, Plan 13603, P.I.D. 004-617-886, and to use the net income derived therefrom (after payment of half the taxes, insurance and maintenance) for the benefit and welfare of my son Andrew during his lifetime. My son Andrew is the owner of a half interest in the said property and there is derived therefrom sufficient income to provide support for him. If it should be deemed necessary to sell the land then the net proceeds of such sale to which my estate is entitled shall be held in trust and the income or so much thereof as my Trustee deems advisable shall be paid to or for the benefit of my son Andrew. I also give my Trustee the power to encroach upon the capital of such sum, if in his unfettered discretion he considers it advisable, for the benefit of my son. Payments of income and out of capital may be made at such times and to whom my Trustee considers advisable for the benefit of my son Andrew. My concern is for the welfare of my son but I make this my Will mindful of the limitations of my son to cope with his surroundings and to provide for himself. It is my hope and faith that the time will come when Andrew will be able to have full and continuing capacity to manage his affairs. Upon the death of my son Andrew the property if not sooner sold or the proceeds of the sale remaining at his death shall form part of the residue of my estate and be dealt with accordingly.
In addition, Ms. Willott said this in her 1989 will:
In making this my Will I have been ever mindful of the needs and circumstances of my son Andrew. I have also taken into consideration the profound assistance which Stephen and Linda Cecilia Onwood and Rita Ann Dawson have given to me and my son. In many ways they have been like my own children to me and I have great confidence in their ability to render such assistance as may be reasonably required, without imposing any duties upon them, for the benefit of my son Andrew. I have confidence in them in part because of their friendship for and understanding of my son Andrew.
[22] Rita Dawson had married in 1967 and Earle Dawson was born in 1968. Ms. Dawson continued her friendship with the Willotts. She saw Oliver and Iris Willott quite frequently; her contact with Andrew Willott was less frequent until she came to live with Iris Willott. Ms. Willott told Ms. Dawson of the provisions which she had made for her in the 1989 will, but she did not see the will.
[23] Sometime in about late 1990, Ms. Dawson noted that Andrew Willott's mental health was deteriorating and eventually spoke with Ms. Willott about his condition. Ms. Willott obtained medication from her doctor, Dr. Benoit, for her son and, unbeknown to him, put it in his juice every morning. Ms. Dawson said this concerned her. She said Andrew Willott became confused, "almost dazed." Therefore, Ms. Dawson said that she discarded the medication without Iris Willott's knowledge and replaced it with water. Following this, Ms. Dawson testified, Mr. Willott started to get better, but in early 1991 he started to deteriorate again; once again exhibiting bizarre behaviour.
[24] By May of 1991, Ms. Willott's cancer was in remission. At that time, Ms. Dawson began seeking other accommodation. Although there was no overt unpleasantness between her and Ms. Willott, I am satisfied on the whole of the evidence, that they were no longer comfortable living together.
[25] Ms. Dawson stayed with her son for a short time, then at another place, and then she found a small rental home. She said that, for a few months before that, she and Andrew Willott had discussed that "he had to leave the farm for his health."
[26] About two weeks after Ms. Dawson moved into her newly rented house, Mr. Willott moved in with her. At first, as Mr. Willott described it, they lived as brother and sister. Thereafter they married; the date of the marriage was not in evidence before me.
[27] Shortly after Ms. Dawson (as she then was) moved out of Ms. Willott's home in 1991, Ms. Willott went on a trip to England with her close friend, Marie Graham. At this time Andrew Willott was still living on the farm. Within the month before she and Ms. Willott left for England, Ms. Graham testified, Andrew Willott disappeared. Ms. Willott did not know where he was. This had happened from time to time over the years. Ms. Willott would check gaols and hospitals. On the day she was leaving for England, Ms. Willott learned her son was in Riverview hospital and spoke with him on the telephone.
[28] While in England Ms. Willott telephoned Riverview and was told Mr. Willott had left the hospital with Rita Dawson as "next of kin." Mr. Onwood testified that when Ms. Willott returned from England she did not know where her son was. He said that Ms. Willott had asked Ms. Dawson "where Andrew's T.V. was" and that Ms. Dawson had replied "with Andrew." A while after that Ms. Willott encountered her son while shopping; she asked him where his T.V. was and he said "at Rita's." Mr. Onwood said Ms. Willott concluded from this that her son was staying with Ms. Dawson. Ms. Willott learned of their marriage from others. She had not been invited to the wedding nor told of it by either of them.
[29] From the chance meeting between Mr. Willott and his mother until May or June of 1992, I infer that if there was any contact between them at all, it was brief and infrequent. Mr. Willott had been ill. Then in June of 1992 Mr. Willott wrote Ms. Willott a short letter, apparently in response to a note he had received from her. He said in future he would explain his mental illness to her, and closed with the following words: "Though I have hurt you in past I still think of you and your ways tenderly." Shortly thereafter, he signed another letter which he dictated to his wife (who shall be referred to hereafter as Ms. Dawson Willott) which enclosed a statement concerning his mental illness which had been prepared for criminal court proceedings (which had resulted from behaviour during an episode of his illness). About six weeks later, Ms. Dawson Willott again wrote to Ms. Willott about Mr. Willott's schizophrenia and his improved condition. Ms. Willott kept these letters, and others which she received later, and they were set aside in a special box for her executor in anticipation of her death.
[30] In late 1992, Ms. Willott took steps to change her will. She went to see Edward Strongitharm, Q.C., who had prepared the 1989 will and who had been the Willott's solicitor for many years; he had even been retained by Oliver Willott to deal with Andrew Willott's criminal matters on one or two occasions many years before. In the fall of 1989, Ms. Willott had gone to see Mr. Strongitharm, accompanied by Mr. Onwood, to inquire about getting a restraining order against her son because of his behaviour at that time. Before Ms. Willott went to see Mr. Strongitharm about a new will she spoke with Beverley Wilson about her proposed will. Ms. Wilson had belonged to Ms. Willott's congregation for a number of years before moving to Victoria. Ms. Wilson had worked as a legal secretary and was familiar with wills and trusts. Ms. Wilson accompanied Ms. Willott when she went to see Mr. Strongitharm. Mr. Strongitharm testified that when Ms. Willott came to see him about the new will she was very certain about what she wanted to do: she wanted to look after her son and to show her respect for her church. He said he discussed trusts, life interests and the possible consequences to Mr. Willott's "GAIN benefits" (income he was receiving under the Guaranteed Available Income for Need Act. Mr. Willott currently receives income under one of the Acts which has replaced the GAIN Act: the Disability Benefit Program Act (R.S.B.C. 1996, c. 97),). Mr. Strongitharm referred Ms. Willott to another lawyer in his office, Leonard Krog, to complete work on her will, as he was just about to retire.
[31] After the office visit, Mr. Strongitharm wrote Ms. Willott a letter dated December 2, 1992. The letter raised a number of concerns and included the following paragraph:
To better ensure that the "handicap" payments to your son, Andrew, will not be affected by his inheritance from you it is necessary to provide for a discretionary trust to be administered by one or more trustees. If you make an outright gift to your son, the result would likely be that he would not receive the handicap pension until he had virtually exhausted the funds, his inheritance from your estate.
Enclosed with the letter were five pages of material entitled "Estate Planning Counselling Material." Those pages touch upon provisions for handicapped offspring (among other matters) and the use of discretionary trusts to supplement government benefits to the handicapped.
[32] Ms. Willott had a further conversation with Mr. Krog and she also provided some written instructions. Mr. Krog drafted a will and he met with Ms. Willott to review it prior to preparing the final draft. Mr. Krog could not recall his exact discussions with Ms. Willott which is not surprising considering he has, as he testified, drafted hundreds of wills. He did know the size and assets of the estate and the approximate income from the rental units. However, one thing which he did not know was that only one-half of Lot 1 legally belonged to Ms. Willott; its entire value was included in the calculation of the value of the estate and its income. Mr. Krog understood that Mr. Willott would receive approximately 35% of the "value" of the estate based on the inclusion of all of Lot 1 in that value. In fact, Mr. Willott's share in the estate is less than 18 percent of its total value.
[33] Although Mr. Krog cannot recall exactly what he told Ms. Willott about her provisions for Mr. Willott, Ms. Wilson testified that after the will was signed Ms. Willott told her that Mr. Krog had thought the will was unfair to Andrew Willott. Ms. Wilson suggested she see another lawyer for advice on other options. But, Ms. Wilson formed the opinion that Ms. Willott was content with the will as drafted and no longer wanted to deal with the matter further.
[34] Ms. Willott also spoke about this will with Ms. Graham. Ms. Willott had told her the lawyer had said she had not left her son enough money to run the property. Ms. Willott told Ms. Graham, however, that Andrew Willott would "live like a king." She said Ms. Willott was firm and knew her own mind. She added, speaking of Ms. Willott "she knew what was best, and what was best for you, too."
[35] Ms. Willott's will is dated January 29, 1993. Her estate was to be distributed as outlined in paragraphs [2] and [3] above. It also contains the following:
In drawing my Will, my concern is for the welfare of my son, and I make this Will mindful of the limitations of my son to cope with his surroundings and provide for himself. It is my hope and faith that in time, Andrew will come to be able to have full and continued capacity to manage his affairs. For this reason, I have, by making the bequests hereinbefore set out, provided for him a comfortable living and income sufficient to maintain him appropriately. I have also taken into consideration the support and kindness shown me over the years by the organization of Jehovah's Witnesses and would like to thus express my appreciation to them by way of a donation to the Watchtower Bible & Tract society and the Cedar Congregation, of which I am a member.
[36] From the time Ms. Willott signed her will in January of 1993 until her death in September of 1995, she continued to receive cards and letters from her son and his wife; she responded on a few occasions. There was very little direct contact between mother and son until the two weeks or so immediately before her death.
[37] Much evidence was lead about the character of Ms. Willott and Andrew Willott and about their behaviour toward one another. Iris Willott was described as frugal, loving, hardworking, independent, considerate, and devoted to her faith. Those closest to her said she was always concerned about her son. At times she was fearful of him.
[38] Andrew Willott said of his mother that she was a "strange bird." He described her as opinionated, inflexible and "nit-picking." He agreed she was frugal.
[39] During episodes of Mr. Willott's illness he was seen by many as very frightening. A large, powerful man, he was very difficult to subdue. On occasion, when he was hospitalized, the hospital staff had to call for police assistance with him. Many people have also seen his goodness and kindness.
[40] Both mother and son attracted the loyalty and love of others; in this way (and perhaps in other ways) they were much alike. I am satisfied that what Mr. Willott said about his relationship with his mother was very true: "I guess we mutually loved one another in our own way." I am also satisfied that each was hurt by and disappointed in the other, although the hurt was unintentional and the disappointment inevitable as each wanted the other to be something other, or more, than he or she was.
[41] Ms. Willott's frugality expressed itself in the way she lived her daily life. She would mend rather than replace. Mr. Onwood testified that she used the rental income she received for her living expenses; the English pension she received as well as her Canada Pension went into her savings or securities. For the years 1986 through 1995 her annual net income from rents averaged $5,409. Over that period the lowest net amount she received was $2,873 and the highest was $11,223. Her average net rental income without consideration of the lowest and highest years was approximately $6,350. The rental income was always divided, for tax purposes only, equally between Ms. Willott and her son.
[42] In late 1992, Mr. Willott with the help of his wife, picked a new physician, Dr. Julian Lisinski. In a report dated February 19, 1997, Dr. Lisinski wrote:
In approximately 1992/1993, I became convinced that the problem with the medical management that Andrew Willott was undergoing was that he was not received the correct medications. Unfortunately, the correct medication was not available at that point in time. The correct medication became available when the drug Respiradol was finally made available to Canadians, specifically to British Columbians. Andrew was a patient in Riverview Hospital at this time, and in fact when I asked the Riverview staff to give him a trial of this drug, they were very reluctant to do so. In fact, I was only able to do this myself after his wife had brought him home and with her permission and with his guarded consent we commenced him on a trial of Respiradol with excellent results. However, unfortunately, Andrew developed side-effects to the Respiradol; and although it has kept his Schizophrenia at bay and has allowed him to lead a normal life, it has meant that he has also become afraid of this drug and afraid of its potential side-effects such that he is now very reluctant to use it.
[43] The Riverview Hospital admission referred to by Dr. Lisinski above took place in September of 1993. Mr. Willott's response to Respiradol was dramatically positive. According to Ms. Dawson Willott his life changed and he started to take interest again. This significant improvement was reported in correspondence to Ms. Willott.
[44] In the spring of 1995 Ms. Willott became ill again. In late May of that year she asked Ruth Onwood, Stephen Onwood's daughter who was then 14, to come and stay with her "for a few days." Ms. Onwood lived there until August 26, except for one week in early July when Ms. Willott travelled with Celia Onwood to California to seek alternative cancer treatment at a Mexican clinic. Celia Onwood also spent many hours assisting Ms. Willott.
[45] When Ms. Willott returned home from the journey to California, her condition deteriorated rapidly. The Onwoods organized the congregation to provide care and meals. Many people, dozens of people, contributed time and effort so that Ms. Willott could stay at home for the last weeks of her life. Ruth, Celia and Stephen Onwood each devoted many hundreds of hours to Ms. Willott in her last months. All of these hours were gifts of love, freely given, without expectation of reward from Ms. Willott.
[46] Mr. Willott learned from a friend of his mother's trip for treatment. He asked her doctor to help him get in touch with her. Ms. Willott agreed. They visited together about four or five times, mostly shortly before her death. She saw both Mr. Willott and Ms. Dawson Willott (the later at Ms. Willott's request) two days before she died. I am satisfied that Ms. Willott and her son as well as her daughter-in-law had reconciled with one another before Ms. Willott's death, but neither Mr. Willott nor Ms. Dawson Willott attended her memorial service. However, Mr. Willott sent a card to the elders asking that it be read at the service. It said this:
I would like to express my heartfelt thanks for the love and self sacrifice demonstrated by the women of the Cedar & Ladysmith congregations who devoted themselves to the care of my mother in her last days, thus enabling her to die, as she wished, at home.
I am especially grateful to Celia and Ruth Onwood, who lovingly and tenderly cared for her down to the end. Mom fought valiantly for life, holding it sacred. The creator willing, we will all see my Mom again in the resurrection.
Thanking you once more,
Andrew Willott
[47] There is no evidence that Ms. Willott knew the amount of Mr. Willott's income at the time of her death. She would have learned the following from a letter signed by her son (although drafted by his wife) dated September 3, 1995:
We may be poor financially and materially by the average affluent persons' standards, but we are rich spiritually. I use this term, not in the religious sense you are familiar with, but in the moral aspect, having to do with refinement of thought and feeling. What little we have in a monetary sense we try to use wisely and unselfishly. As Andrew says, if commerce depended on his shopping habits as a consumer, the retail stores would be bankrupt!
However, he did make his first major jewelry purchase, since 1965, just this past week. Because we did things in such a rush, and there were more important things to consider at the time, we never got around to purchasing a (sic) 14K gold with three diamond marriage band. It's beautiful, but not as beautiful as him!
[48] I find it probable that Ms. Willott knew Ms. Dawson Willott was not employed for wages outside the home. Further, earlier correspondence to Iris Willott had stated that Ms. Dawson Willott was no longer receiving the unemployment insurance benefits she had received following her last period of employment.
[49] At the time of trial, Mr. Willott was receiving $1,128 in monthly benefits for the support of himself and Ms. Dawson Willott who receives no income herself. Undoubtedly, their income was no more than that at the time of Ms. Willott's death. Of the $1,128, $520 is the shelter allowance which covers rent, heat, cablevision and the like. Benefits also provide them with medical, dental, eye care, prescriptions and three hours of home support weekly. This means they have $608 per month to cover all of their expenses other than those mentioned. They must, of necessity, live very frugally, as they had been living prior to Iris Willott's death.
[50] Mr. Willott and his wife are additionally challenged to live on this very limited income due to a further medical problem that now faces Mr. Willott, a condition which became known after Iris Willott's death.
[51] In 1996, Dr. Lisinski discovered that Mr. Willott was positive for Hepatitis B. As a result of that, in late 1996, he went into liver failure and developed massive ascites. Dr. Lisinski said this in his report dated February 19, 1997:
Unfortunately now, one enters into the situation where we have to evaluate what Andrew's future is. He has cirrhosis of the liver as the result of being Hepatitis B positive. In 1996, he almost died as a result of this. He still is at risk of a future episode of liver failure, possibly culminating in a complete destruction of his liver. In the meantime, his psychiatric condition, although under control, has recently shown some signs of faltering. Respiradol is no longer the friend it use to be. This may be because his liver is unable to tolerate the side-effects of Respiradol or it may be that the innumerable drugs that were pumped into Andrew in the past are finally catching up with him and starting to take their toll.
[52] Dr. Bennett Horner, a specialist in internal medicine, provided an opinion, which I accept, regarding Mr. Willott's life expectancy. His conclusion was as follows:
It is difficult to give an exact figure but certainly in light of the fact that Mr. Willott is compensated at the present time but has cirrhosis to the degree of having ascities related to liver disease I think 50% change (sic: chance) of living five years and perhaps 25% of living ten years would be reasonable figures.
[53] As a result of Mr. Willott's conditions, in Dr. Lisinski's opinion, he needs the total care which is provided by Ms. Dawson Willott. She must be attuned to and watchful of him. Without her care, Dr. Lisinski opined that Mr. Willott would be in hospital permanently. He requires a high carbohydrate diet with little or no chemicals or additives. He must take vitamins. He needs space and privacy and needs to be able to get out-of-doors. At the same time, he needs to have access to his physician and pharmacy.
Analysis
[54] A testatrix's obligation to make adequate provision for the proper maintenance and support of a child is based upon the testatrix's knowledge of all relevant circumstances at the time of her death (or perhaps more precisely, at the time she last had testamentary capacity). It would be unreasonable, in my view, to look at the testatrix's "judiciousness" at a time other than that. Therefore, the provisions made for Andrew Willott's maintenance and support must be analyzed without reference to his liver condition. A testatrix or a testator is expected to achieve justice, but is not expected to be prescient.
[55] It was, as noted, Ms. Willott's express intention to provide her son with "a comfortable living and income sufficient to maintain him appropriately." Considering the historical figures of the income generated from the net rents received from all the rental units on Lot 1 (which I find to have been $529 per month) and the fact that the rental income would prevent Mr. Willott from receiving disability benefits, I find that the provisions of Ms. Willott's will could not fulfil her stated intention, based on all of the circumstances at the time of her death. If Mr. Willott chose to live in one of the residences on Lot 1 and rent out the rest, his income from rents would be considerably reduced. If Mr. Willott chose to live in one of the residences on Lot 1 and not rent out the others, he would still be entitled to receive disability benefits. However, he would have the sum of $608 per month, as he now has, to cover expenses for himself and Ms. Dawson Willott. I find that amount of income to be insufficient to meet Mr. Willott's present needs; I find it is certainly insufficient to provide him with the "comfortable living" Ms. Willott intended even were he not suffering from the liver condition he now has.
[56] I find that Ms. Willott intended to leave Mr. willott with a share of her estate that would make adequate provision for his proper maintenance and support as contemplated by the Wills Variation Act. By inadvertent error, or by an inaccurate appreciation of the facts coupled with a failure to appreciate the law to which she had been alerted by her solicitors, she failed to do so.
[57] Therefore, it is now the courts task "to make orders which are just in the specific circumstances and in light of contemporary standards." Tataryn v. Tataryn [1994] 7 W.W.R 609 (S.C.C.). The Tataryndecision is the leading authority dealing with the principles applicable to British Columbia's Wills Variation Act. Madam Justice McLachlin, at p. 615 defines the interests protected by the Act:
The two interests protected by the Act are apparent. The main aim of the Act is adequate, just and equitable provision for the spouses and children of testators. The desire of the legislators who conceived and passed it was to "ameliorat[e] ... social conditions within the Province". At a minimum this meant preventing those left behind from becoming a charge on the state. But the debates may also be seen as foreshadowing more modern concepts of equality. The Act was passed at a time when men held most property. It was passed, we are told, as "the direct result of lobbying by women's organizations with the final power given to them through women's enfranchisement in 1916". There is no reason to suppose that the concerns of the women's groups who fought for this reform were confined to keeping people off the state dole. It is equally reasonable to suppose that they were concerned that women and children receive an "adequate, just and equitable" share of the family wealth on the death of the person who held it, even in the absence of demonstrated need.
The other interest protected by the Act is testamentary autonomy. The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was "adequate, just and equitable in the circumstances." And if that testamentary autonomy must yield to what is "adequate, just and equitable", then the ultimate question is, what is "adequate, just and equitable" in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is "adequate, just and equitable".
She goes on to say at p. 619:
If the phrase "adequate, just and equitable" is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is "adequate, just and equitable" in the circumstances of the case.
[58] The first question that must be addressed after a finding that the testatrix did not make adequate provision for the
proper maintenance and support of a child, then, is what legal obligations did she have toward the child during her lifetime. In this case, the answer is none. The B.C. legislature has imposed no legal duty on a parent to support financially an adult child who cannot, for whatever reason, support himself. In this case, I find as a fact that Mr. Willott has no legal claim for unjust enrichment against his late mother's estate by virtue of the work and chores he performed or by virtue of the fact that he did not receive a share in the rents from Lot 1 after a one-half interest in it was gifted to him by his father.
[59] McLachlin, J. in Tataryn(supra) says at p. 619:
The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed through society's elected representatives and the judicial doctrine of its courts.
The Wills Variation Actdoes not make specific reference to adult children who are "dependant" as distinct from children, simpliciter. This is, for example, very different from the Alberta equivalent to our Act, the Family Relief ActR.S.A. 1980, c.f-2 which only allows dependants to apply to vary the will of a testator. "Dependant" is defined in s.1 of the Family Relief Actas follows:
"dependant" means
(i) the spouse of the deceased,
(ii) a child of the deceased who is under the age of 18 years at the time of the deceased's death, and
(iii) a child of the deceased who is 18 years of age or over at the time of the deceased's death and unable by reason of mental or physical disability to earn a livelihood;
[60] In Alberta, unlike British Columbia, no adult independent child has status to bring an action to vary his or her parent's will.
[61] The central issue raised by the case at bar can be relatively simply stated: is a testatrix in British Columbia subject to an implicit legal or moral obligation to provide maintenance and support for an adult child who is not financially independent in substitution for the support provided to that child by the state during the testatrix's lifetime or, if the whole of the circumstances warrant it, is she only required to provide adequate support in addition to state support?
[62] It appears there may be two lines of authority in British Columbia addressing this question. MacKinnon, J. dealt with the issue in Penty v. Mott(1984) 16 E.T.R. 175 B.C.S.C. In that case the deceased left nothing to her mentally handicapped state supported adult son; all of her estate was left to charity. The court said this at page 179:
Counsel have produced no authority to support the proposition submitted that a "better life" is the proper criterion or test by which the Court should determine if the testatrix made adequate provision for the care and maintenance of Donald. I am of the view the issue here is whether or not an award should be made when Donald's needs are now being provided by the public purse. Implicit in the submission of the defendants is the proposition that, if all of Donald's needs are properly met by the public purse, then no award should be made. The authorities do not support such a proposition.
[63] After canvassing a number of authorities from Manitoba, Saskatchewan and British Columbia, MacKinnon, J. found "the testatrix failed in her moral obligation to provide for her son" (p. 181).
[64] In Stone (Public Trustee of) v. Stone et al (1994) 4 E.T.R. (2d) 165 (Alta. Ct. Q.B.) Kent, J. cites Penty(supra) and the decisions referred to in it in support of the conclusion that "the moral duty is not discharged by virtue of the fact that the government will look after the dependant person." (p.173) At the same page, she continues as follows:
. . . This view is more in accord with the moral underpinnings of the Alberta Act. There is nothing in any government subsidy programme which removes the moral obligation that a parent has for dependant child.
Counsel for Charles Stone argues however that there is a right to receive AISH, and that right relieves the testator from his moral obligation. He relies upon the decision in Re Kinloch, supra, where the court did take into consideration the imminent institution of a universal hospitalization scheme in Alberta. Without entering the political debate about what rights and privileges exist in the current Canadian health care system, the Canada Health Actappears to require provincial health care schemes that qualify for funding to have universal access.
There is nothing in the legislation establishing the AISH subsidy which creates a right to receive the benefit. The legislation uses the word "may" and the Director's discretion can only be exercised if the Legislature exercises its authority and grants funds. While I agree that there is no evidence that this particular programme will be eliminated or reduced in the near future, it would be unrealistic to ignore the fact that governments throughout this country are reconsidering all aspects of our social safety net in light of the severe financial stresses brought about by our debt and deficit. There is no right to receive AISH and there is no guarantee that it will continue into the future.
[65] In both Pentyand Stonethe entirety of each estate was held in trust for the applicant and the awards made in each case were subject to review.
[66] In 1996, Madam Justice Boyd dealt with the claims of three adult children against an estate valued at approximately $950,000: Newstead v. Newstead(1996), 11 E.T.R. (2d) 236 (B.C.S.C.). Boyd, J. found the testator had not made adequate provisions for any of the three claimants. One of those children was living in a group home and fully supported by provincial programmes. The following is the finding with respect to her claim (p. 38-39):
. . . Since a substantial part of any award to Sherryle would be reimbursed to the government, rather than find its way directly to Sherryle, he submits that the Court should decline to make any award in her favour. At most, he suggests that the Court order that funds be set aside to provide for amenities and comforts for Sherryle over and above the amounts required for basic care.
While there are various lines of authority which support these principles, I am satisfied that the general thrust of the law is otherwise. As Mr. Amighetti notes in his text (supra at pp. 94-94) (sic) the law appears to be clear that "a testator's moral obligation to provide for a mentally incompetent dependant is not negated by the provision of care under a state schemes (sic). In effect, a testator has a duty to absorb or reimburse the state for such costs." Further, "the testator's obligation to contribute to the mentally incompetent dependant's maintenance exists regardless of whether or not the dependant would benefit personally from any part of the contribution." He finds support for both propositions in this Court's decision in Penty(supra).
In any event, I have some difficulty with the proposition that both the testator and the Court can safely rely on some guarantee of continued government funding of Sherryle's needs and that any award to Sherryle ought to (sic) simply to provide for amenities over and above the basic care provided under government funding.
[67] After quoting Kent, J. in Stone, Boyd, J. concludes at p. 40:
For all of these reasons, including her age, her needs, and all of the other circumstances of this case, I find, on the basis of his moral obligation to her that the testator's will must be varied to ensure that Sherryle is adequately cared for. In my view, the award must go beyond the mere provision of comforts and amenities and beyond government financed basic care.
[68] In Public Trustee v. Jacobson Estate (1987), 58 Alta. L.R. (2d) 355 a testatrix divided her estate equally among twelve children one of whom was an institutionalized adult. MacKenzie, J. was dealing with the Alberta Family Relief Actreferred to above. At page 356 he said this:
One of the rights of the child, of the dependent child, is to receive care from the state, and I think that it is well that we recognize in this day and age that to be some type of right and not a form of benign charity, but rather a fundamental right that all citizens have in this country that we not have to suffer alone the consequences of severe disaster, at least when it comes to medical and physical care of people who are rendered truly dependent. That is a right to which all citizens are entitled.
It strikes me that it is unfair that we should look to an estate to carry that particular burden simply because a mother or father has died. Of course, if there is sufficient money in the estate and the mother or father has disposed of it in a way that is unfair to that child, then an application is quite appropriate under this Act. But when you look at the circumstances and you say what has been done is fair, each of these children is entitled to a fair share in the estate, then I think that the wishes of the parent should be respected.
Some of the older thinking, and I am going back several years now, I think has to be disposed of. We can go back into our social history to a time when, and it is not too many years ago, to a time when poverty was considered a moral fault of the poor person, and, indeed, mental illness was considered a moral fault of the mentally afflicted as were also many physical disabilities. There was a tendency in the thinking to look for blame and to often look to the family as being the cause of the problem, and therefore, it was only right that the family should carry the burden. Surely in 1987 we have come to a point where we recognize that certain afflictions are not the fault of anybody in particular, and that the consequences of those afflictions should be borne by all of us rather than by the afflicted alone.
In this particular case I am told that many members of the family are doing more than is expected of others in our community to look after afflicted people. They happen to be related, but that really is beside the point. They are doing more.
In brief, I would simply say that the disposition made by the mother, in my view, is equitable and right in all the circumstances. She did not ignore the situation of this particular daughter, and indeed, made reasonable provision for the daughter. She had the burden of making reasonable provision for all of her children, and that is what she has done, and I deny application.
[69] Kent, J. in Stone(supra) distinguished Jacobson(supra) at p. 173, saying only:
Mr. Justice MacKenzie makes it clear that his reasoning would not apply in a case where there was sufficient money in the estate or where there was some unfairness to one of the children in the will. He was obviously not dealing with a situation such as the one before me.
[70] In Barnsley v. Barnsley Estate(1997), 28 B.C.L.R. (3d) 165 (B.C.S.C.) Shabbits, J. referred to both Jacobsonand Newsteadwhen deciding the application of an adult child with Down's Syndrome with respect to an estate of $550,000. The testator had bequeathed $5,000 to each of four grandchildren and divided the residue between the applicant's three independent siblings. The following findings are made at p. 173:
. . . The support from the state which Sarah receives is of a basic level. There are other goods and services which would be of benefit to her. These include speech language treatment and life skills training. There are numerous other expenditures which would promote her independence. It is unfortunate that Sarah has thus far received few of these "discretionary" benefits. I am of the view that she has a strong moral claim against her father's estate for the future funding of such benefits.
There is, as well, the ongoing concern that Sarah's present care funding is not guaranteed. It is subject to review and decree.
The testator's other three children are of good health. They are financially independent. They were close to the testator. All received some advances from the testator during his lifetime. The testators' two oldest children, in turn, financially assisted him when he was in need. The testator's making provision for them in his will is just and equitable. The testator's disinheritance of Sarah is not. The testator's decision to disinherit Sarah fell below his obligations to her as defined by reference to moral norms. The application made on Sarah's behalf must succeed.
All four of the testator's children have a moral claim on his estate. At the time of the testator's will and death, none of the four children were financially dependent on him. Although Sarah is supported by the state, that support is not guaranteed. Neither is the income or support enjoyed by the testator's other three children. Nevertheless, an "adequate, just and equitable" order requires that Sarah receive more than the other three of the testator's children. Sarah's needs are greater. She did not receive the benefit of any advances during the testator's lifetime.
[71] Shabbits, J. then awarded the applicant (Sarah) a discretionary trust of $150,000 to be paid rateably from the shares of her siblings.
[72] If, as Madam Justice McLachlin said in Tataryn(supra) "the legal obligations on a testator during his or her lifetime reflect clear and unequivocal social expectation" then that same social expectation must reflect the extent of the testators moral obligations vis a vishis neighbours and fellow taxpayers after his death. In other words, if the legislature wishes to require a testator to support an adult child who is financially dependent in substitution for support provided by the province it must, in my view, express that social expectation by an unequivocal provision in the Act.
[73] Therefore, I find that a judicious testatrix, as part of her consideration of what is adequate support for an adult child who is incapable of supporting himself due to disabilities, may take into account the provisions made by the state for that person. That is the starting point. The state provides for basic needs. But the state also is willing to provide for those needs without deduction while allowing for some "extras" for the disabled person. Thus arise the exemptions in the Disability Benefits Program Actand the Regulations to that Act.
[74] I find on the whole of the evidence that Iris Willott did not make adequate provision for the proper maintenance and support of her son, and did not discharge her moral obligation to him. Lot 1 will provide accommodation for him should he chose to live there or, if he chooses to sell that property, I find it will provide him with enough money to purchase other suitable accommodation. His benefits under the regulations to Disability Benefits Program Actwill cover his house insurance, taxes, fuel, water, hydro, garbage and basic telephone expenses (s. 5 Schedule A). In addition, benefits will provide him and his wife with medical and dental coverage, eye care, prescriptions and home support. But the monthly amount of $608 which he will then receive (assuming he and his wife are together) is not sufficient, I find, to maintain him to the standard which was reasonable given his own circumstances at the time of his mother's death and the other factors the court is required to consider when dealing with Wills Variation Actactions, including the size of the estate.
[75] I find that Mr. Willott should be provided with a further lump sum which (together with the remainder of the cash bequest which he received under the will) will enable him to purchase a reasonably reliable vehicle and certain household items which he requires. Many needs for the later will be satisfied by his receipt of the balance of Iris Willott's effects which all the defendants agree he should have. I find the additional amount that Mr. Willott should receive is $20,000. If Mr. Willott, with the assistance of his wife and others, plans efficiently, this sum should also suffice to cover his initial vehicle insurance costs as well as living and other transitional expenses which he will incur over the one to three months which I estimate will be the time during which he will not receive benefits due to receipt of funds from the estate. Should Mr. Willott choose to sell the property he can and should plan the sale and any purchase of other property to minimize the time during which he will not receive benefits.
[76] In addition, Mr. Willott should have the benefit of a trust as contemplated by the Disability Benefits Program Act and Regulations. This trust shall be in the amount of $100,000. Mr. Willott shall receive the income from this trust to the maximum allowed under the regulations. The balance of the annual trust income, after payments of all costs related to the administration of the trust, shall be paid to the Society, from whose share of the estate the trust shall be created. Upon Mr. Willott's death the capital of the trust shall revert to the Society. At present this means Mr. Willott will receive from the trust a maximum of $5,484 per year or $457 per month in addition to the $608 in monthly benefits which he receives. If necessary, counsel may speak to the question of the appointment of an appropriate trustee.
[77] The trust shall be created from funds from the sale of Lot 102 which shall be listed for sale forthwith. Mr. Willott may call for the transfer of Lot 1 and the balance of the funds owing directly to him at any time from the date of this judgment but not later than three months after the establishment of the trust. Until that time, he shall be entitled to interest on the funds owing directly to him in the amount of 5% per year payable at the time he receives the funds. Should Mr. Willott chose to defer the transfer of Lot 1 he will not be entitled to any accounting with respect to the income from it, nor shall he be responsible for any of the expenses relating to it.
[78] The additional lump sum payment shall fall rateably on the estate. Mr. Onwood's share of the estate shall be satisfied next after that of Mr. Willott. Thereafter the congregation's share of the estate shall be satisfied, following which the Society shall receive its share.
[79] Unless otherwise agreed, costs may be spoken to.
[80] If I have wrongly answered the question posed in paragraph 61 above, then I would order the entire residue of Ms. Willott's estate (after payment to Mr. Willott of the additional cash sum) to be held in trust for the benefit of Mr. Willott during his lifetime following which it is to be distributed in accordance with the provisions of Ms. Willott's will.
[81] Mr. Willott undoubtedly feels that his mother's will has treated him unfairly. He would like to have most, if not all, of her estate to care for himself during his lifetime and to leave an estate to his wife and the family he enjoys through her. That this court cannot do. As Carrothers, J. said in Lukie, et al v. Helgason and Lukie (1977), 1 B.C.L.R. 1 (B.C.C.A.):
. . . I repeat that we have no power to recast the testator's will or to redress inequalities or fancied injustice, but only to secure a sufficient provision for the proper maintenance and support of those children of the testator who have been left by him without proper and adequate means of support.
"Downs, J." -
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Bush Admin Bans Media Coverage of Dead Soldiers Returning..Why?
by Valis inwhy would the pentagon suddenly stop all the media coverage of our dead troops coming home?
a little too close to election time maybe?
i hope this comes back to haunt bush and all of his war cronies and i hope they can live with all the dead that keep piling up every day.
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expatbrit
Hello Abaddon:
Please don't insult your own intelligence, let alone that of other people, by making such pathetic strawman arguments. Please cite which left wingers "didn't want to do anything about it". This is about freedom of information and freedom of press.
Insulting myself is the only form of insult I consider legitimate. Anyway, do you actually want a list of names? Well, you could start by printing a list of continental-European politicians. Make sure Chirac and Schroeder appear prominently. And you could print a list of the members of the American Acting Academy, or whatever it's called, and make sure Michael Moore (stupid white-guy), Susan Sarandon and Tim Robbins feature on the list. Or you could take a roll-call of the thousands of anti-war protestors and left wing groups who organised protests.
I notice that you italicised the word "anything" in your quotation for emphasis. Your next post would be to ask me to demonstrate that these people didn't want to do "anything" about the Iraq situation. My response to that would be that the complete lack of realistic alternatives to war offered by the anti-war advocates before conflict started qualifies as not wanting to do anything. "A difference which makes no difference is no difference" to quote Mr Spock. A typical pre-war conversation with an anti-war advocate would go something like this:
E: "Saddam's regime is brutal. The sanctions are brutal. War is unpleasant but is the least worst option"
Anti-war person: "But war will kill thousands of Iraqi's!"
E: "Not as many as will die if the war isn't fought"
Anti-war person: "We should find other ways!"
E: "OK, what do you have in mind?"
Anti-war person: [Insert utterly unrealistic alternative here]
E: "Yes but Saddam may not know the words to Kumbaya, and he may not want to link hands and sing it."
Anti-war person: "You right-wing baby killer!"
I'd be slightly less sceptical of your attitude if you had shown concern for the fact that the US administration in Iraq has no idea of the numbers of Iraqis killed by US Troops since the end of major war operations.
Scepticism is a virtue as far as I'm concerned. However, the above is a bit of a meaningless statement. If the US (and everyone else, for that matter) has no idea of the number of Iraqi's killed by US troops since the end of the war, then the number could range from 0 to hundreds of thousands. Until some reasonable quantification can be placed upon the amount, this argument suffers from irrelevance.
However, there are news media in Iraq, who do report extensively on every attack involving the loss of life of Servicemen and civilians. If the troops were really blowing away Iraqi's in large numbers, don't you think this would be reported on by those media? Bad/controversial news is sellable news, and massacres of Iraqi civilians certainly qualifies as that. And I know you're no conspiracy theorist, so you wont subscribe to the ridiculous nootion that there is some great plot to cover it all up.
See above comment about the US Administrations bad bookeeping before blaming the UN on deaths caused by Saddam's mansion building and corruption.
The half-million figure is based upon studies by UNICEF and Amnesty International. I started a thread upon it before the war. The US administration needs better bookkeepers for sure, but this figure is not theirs.
And you might rather politicians lie and decieve the public; I'd rather they didn't.
LOL...what was that you were saying about strawmen? I would rather that politicians never lied because I would rather see the electorate being educated/enlightened enough to always reach a correct consensus based on enlightened self-interest. I accept the reality that this is often not the case, and that politicians will lie for their own ends, and that occasionally such lies may be necessary because the majority of the electorate sometimes gets it wrong. My opinion is that if it turns out this way in the case of the Iraq war, this will be one of those occasions.
Expatbrit