Elder abuse & Undue Influence

Happy October! We hope you have your Halloween costumes all picked out, or at least a big bowl of candy for trick-or-treaters.

This month’s case summary highlights the vulnerabilities faced by elderly individuals. In King v. Vimhel, 2024 BCSC 1745, an 88-year-old plaintiff residing in a care home found herself at the center of a legal battle after suffering severe abuse at the hands of a much younger defendant. In 2013, the plaintiff had been living independently in a four-unit strata development in North Vancouver and owned a vacation condominium in Parksville. She had a healthy social life and was close to her family. The defendant, an “artist”, was 15 years younger than the plaintiff was living out of his vehicle with little to no income.

The couple met in 2013, and began a romantic relationship in 2014.
The Honourable Justice Donegan details how the defendant immediately began a pattern of physical, mental, and verbal abuse. The defendant would criticize her family members, cut of her communication with them, impersonate the plaintiff in cruel emails to her family members, falsely report to the RCMP that the plaintiff’s family members were harassing her, and more. The defendant succeeded in having the plaintiff revoke an existing power of attorney and replace it with one that granted him significant control over her assets. He also moved her from her home to a motel in Surrey, cutting her off from her family and community support.
Despite the manipulation, the plaintiff's daughter worked diligently to locate her, employing a private investigator and ultimately facilitating her escape from the abusive situation in September 2020. This pivotal moment allowed the plaintiff to regain some autonomy, as she subsequently sought legal representation to address the financial and emotional scars left by the defendant. In January 2024, she lost the capacity to manage her own affairs due to dementia, and her son became her litigation guardian.
The court proceedings focused on whether the defendant had exercised undue influence over the plaintiff when she transferred her property interests to him.
Justice Donegan first found that, despite the paperwork indicating the sale price to be “$1.00 and natural love and affection”, the transfers of property to the defendant were effectively gratuitous. That finding was critical, because by law a gratuitous transfer of property gives rise to the presumption of a resulting trust. In other words, when someone transfers property to another individual without receiving anything in return, the law presumes that the transferor is holding the property in trust for the transferee, unless there is sufficient evidence to establish that the transfer was meant as a gift at the time of transfer.
In addition, Justice Donegan noted that the transfer should be set aside in any event, as it was the result of undue influence, forcefully finding that:
The evidence adduced in this trial overwhelmingly establishes that the defendant engaged in improper conduct that dominated the will of his victim... Over the period of seven years leading to the transaction in issue, Mr. Vimhel gradually isolated his vulnerable victim from her family and friends to the point of estrangement with them all. He moved

her from her home and into a motel to keep her isolated and under his sole control. She was dependent on him for her food and shelter. He physically, emotionally and psychologically abused her, using her fear of physical harm and even death at his hand, to dominate her will… She was victimized by a predator.

In a decisive conclusion, the court not only restored the plaintiff's rights to her property but also awarded her $50,000 in punitive damages due to the egregious nature of the defendant's conduct, noting that the court would have awarded more had the plaintiff sought a larger figure. Throughout the decision, Justice Donegan emphasized the profound negative impact of the defendant’s conduct on the plaintiff, who had been subjected to isolation and threats of violence. This case serves as a powerful reminder of the critical importance of safeguarding the rights of vulnerable individuals, particularly the elderly, and highlights the need for vigilance against exploitation and abuse. The legal victory is a testament to the resilience of the plaintiff and the effective intervention of her family, ultimately ensuring her protection and justice. Take care of yourselves, and even more importantly, take care of your friends, family, and loved ones who are in a vulnerable position. If you suspect something is not right in a romantic relationship, there are resources available, such as the Seniors Abuse and Information Line (SAIL - https://seniorsfirstbc.ca/programs/sail/), VictimLink BC ([email protected]), the Public Guardian and Trustee ( https://www.trustee.bc.ca/adults/protecting-vulnerable-adult- abuse-neglect-or-self-neglect) and more. Find more resources at https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/protection- from-elder-abuse-and-neglect/where-to-get-help, and feel free to call us if you aren’t sure where to turn next.