Bitterness at losing custody battle was vented at his children, says Supreme Court of B.C. judge
Twins abandoned by a father who was bitter that a custody battle didn’t go his way were awarded 70 per cent of his estate by a Supreme Court of British Columbia judge, even though his will specifically disinherited the two.
“This case is about the father of twins who, I have concluded, and for reasons known only to him, abandoned them initially at birth and subsequently after he lost the custody trial and despite being awarded generous parenting time,” Justice Gordon Weatherill wrote in a ruling Jung v Poole Estate released April 7.
“The deceased lost the battle for custody and thereafter, through bitterness, stubbornly decided to blame them. He put what he felt was in his own best interests first.”
Justice Weatherill also wrote: “The fact that he made it so clear in the first will and the second will that the twins were illegitimate, that he wanted no part of his estate to go to them and instructed his executors to fight any attempt by them to vary his will, speaks volumes about his attitude towards them and his misguided and ill-conceived attempt to punish them for matters beyond their control.
“Despite being granted very generous parenting time, he failed and . . . neglected to exercise any parenting time or to have anything further to do with his own children.”
The judge concluded that the deceased “failed in his last opportunity to behave like a judicious father and recognize . . . his moral obligations to the twins.”
Angelique Casey, an estate and trust lawyer, based in Ontario, says this is a "compelling" case, especially "from the perspective of how the courts in B.C. and Ontario take such a different approach to these kinds of cases.
"Had this case been decided in Ontario, I do not believe the result would have been the same," she says, noting that B.C. has different legislation that allows courts to essentially "rewrite a will based on what a testator should have left to . . .children on a moral basis."
By contrast, the Ontario Court of Appeal has confirmed in Spence v BMO Trust Company that in Ontario, "if your children are independent adults, there is no obligation to leave anything to them in your will. That case dealt with a Jamaican father disinheriting his daughter because she had a child with a white man.
"It does not matter whether the children or the deceased was 'at fault' for the poor relationship."
Courtney Jung and Chelsea Backous are 34-year-old twin sisters and the only children of Ronald Poole, who died on October 10, 2017, in Surrey at 66. He left an estate valued at $879,174.42. His second will explicitly disinherited the twins, who then went to the courts to have it varied by the courts through a summary trial.
Poole left his entire estate to friends Bernard Sabiston and Ian Toombs, who are defendants in this action. In addition to his portion of the estate granted in the will, Toombs received $138,974.85 that did not form part of Poole’s estate as the named beneficiary of an RRSP and a joint owner of two TFSA’s owned by Poole.
The mother of the two sisters, Celine LeBlanc, was in a relationship with Poole when she was 23 and he was 34. When she told him that she was pregnant, he brought up the topic of abortion, but she “strongly opposed that option,” the justice said. Instead, the two separated, and the mother moved to Hay River, North West Territories, when the twins were ten months old.
The mother raised the twins on her own. However, she died in February 1990 from complications of pneumonia. She had prepared her will so that a couple she was friends with would be the girls’ guardians. However, following the mother’s death, death, Poole and Celine LeBlanc’s mother sought the children’s joint custody.
What followed, Justice Weatherill wrote, was a “difficult and hard-fought custody battle” between the guardians on one side and Poole and the twins’ maternal grandmother on the other side.
Poole only met the twins for the first time in May 1990, leading up to the custody trial. At that time, Justice Weatherill wrote he built up a “positive relationship” with them. During the 12-day trial, Poole’s position was that as the twins’ natural father, he should be their custodial parent, and the maternal grandmother would help raise the girls.
On December 13, 1990, the trial judge ruled in favour of the guardians, who became the twins’ custodial parents. However, Justice Weatherill noted the custody trial judge awarded “generous” visiting rights to Poole and the grandmother, and reasonable telephone access and consultations respecting education, health, recreational pursuits, and all other major areas of the twins’ lives.
However, once custody was awarded to the guardians, Poole disappeared from the twins’ lives, except for making contact through a lawyer one year after the trial.
“Despite never being prevented . . . from seeing the twins, he did not exercise any of the parenting time that was granted. Nor did he ever provide any financial assistance to the twins.” Poole also did not provide his contact information so that the twins could contact him. The guardians also lived at the same Yellowknife address until 2011, and even after moving, kept their phone number and listing in the telephone directory.
When the twins became adults, the guardians gave them a box containing the court documents, affidavits and transcripts of the trial, thinking they were then old enough to be given that history.
“The twins were shocked and upset at the revelation that the deceased had suggested that they be aborted,” Justice Weatherill wrote in his decision.
“That combined with the fact that the deceased had made no effort to contact or see them since the custody trial left them feeling unwanted by him.”
Poole had prepared his first will in May 1995, when the children were nine years old, explicitly disinheriting the twins. The will stated: “I have no desire to benefit my illegitimate children . . . as they are well taken care of and I have absolutely no contact or association with them.”
The second will, prepared when the twins were 20, again explicitly disinherited them, saying that they “have not made any efforts to see me, contact me or even make me aware of their circumstances as they may be from time to time.”
The second will also required the defendants Sabiston and Toombs, who were appointed executors and trustees and who were the sole beneficiaries of the estate, to aggressively block any attempt by the twins to apply to vary it. The will even authorized them to deplete the estate's entire capital, if need be, to do so. Specifically, the second will states:
“If this will is contested, I direct my trustees to litigate such contest and I authorize my trustees to encroach upon all the assets of my estate and all of the funds and resources therefrom in their entirety to litigate such a contest and to strenuously litigate such a contest.”
The defendants Toombs and Sabiston said in their depositions that, despite the fact that they are the sole beneficiaries in the second will, they felt a moral obligation to strenuously oppose the twins' application because of Poole’s comments in it. Justice Weatherill wrote in his ruling that as the executors of the Poole’s estate, they were required to remain neutral. “It is, therefore, disingenuous of them to suggest they are strenuously contesting this action on the basis of a ‘moral’ obligation to the deceased, as that obligation is void.”
In his ruling, Justice Weatherill said the estrangement between twins and their father was “due almost entirely to [Poole’s] anger and bitterness towards the outcome of the custody trial” when they were four years old and incapable of estrangement from their father.
As to why the twins didn’t pursue contacting Poole when they were adults, Justice Weatherill said the twins’ understood that he wanted the mother to abort them, "which was difficult for them to hear and understand.”
Justice Weatherill concluded in his ruling that Poole’s decision to ignore the twins was “driven by bitterness and sour grapes” in losing the custody trial. “Instead of blaming himself for four years of abdicating his responsibilities as the twins’ father and instead of following through with his statements . . . that he wanted to be a part of the twins’ lives as their father, he blamed the twins for the estrangement."
He added that Poole’s rationale for disinheriting the twins was “not based on what a reasonable testator judged by contemporary community standards would or should have done.
“Indeed, the comments made about the twins in both wills were unwarranted, cruel, and untrue. They were not what a judicious father in these circumstances discharging his moral duty to his children would have said or done, especially considering the twins’ difficult upbringing, and considering they were the only persons he owed a moral duty to.”
Ingrid Tsui, a partner at Alexander Holburn Beaudin + Lang LLP in Vancouver says that in B.C., estate planning lawyers should always discuss the risk of a wills variation challenge with clients. "This law is so broad that it includes all persons who would be considered spouses or children, no matter the relationship with the will-maker. There is no set formula or explanation that a will-maker can put into a will to guarantee protection against a wills variation claim."
Tsui's colleague Aubrie Girou, says the key to whether a parent has met or not met a moral obligation to an adult child is "whether the parent has provided in the manner of a 'judicious parent.' That is to say, does the provision meet the current societal norms?"
