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The Current Transcript for December 19, 2018

Host: Anna Maria Tremonti

STORIES FROM THIS EPISODE

Prologue

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It's over. Don't you think it's over? I mean for two weeks, you've been on the edge. You know that. But now we have to go. You're fired. I have no choice. You're fired.

ANNA MARIA TREMONTI: Well that's a bit awkward, uncomfortable perhaps, to hear Donald Trump so decisive as he tells the contestant on The Apprentice that the jig is up. But that was reality TV. And this, well, this is the presidency of the United States and the real life twists in details and events emanating from the Mueller probe of the last several days, have more than one analyst saying the stage is set for a congressional showdown on the fate of the U.S. president. We are on that story in just a moment. And then, remember Jacob Marley?

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MARLEY: Humbug. I tell you. Humbug.

SCROOGE: [Screams] Man of the worldly mind. Do you believe in me or not?

MARLEY: I do. I must.

AMT: The ghost of Jacob Marley did more than confront Ebeneezer Scrooge in Dickens classic A Christmas Carol. His eternal torment fueled the imagination of a rabid Dickens fan and author she created a backstory, giving the miserly Marley sympathetic sister. The author Vanessa LaFaye died before she could finish that book. In half an hour, a story of life and death that goes beyond the page. Also today, she was an older woman who became friends with a younger man.

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Just, you know, he married her without anybody knowing.

AMT: It was a relationship that would end up before BC's top court and become a cautionary tale for lawmakers. In an hour, we revisit the story of When Donna met Floyd. I'm Anna Maria Tremonti. This is The Current.

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'The ship deserting the sinking rat': How will Republicans respond to mounting allegations against Trump?

Guest: Dahlia Lithwick, Robert Kuttner

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NEWSCASTER 1: U.S. government has confirmed that President Trump asked of Michael Flynn to or microfluidic should resign as U.S. national security adviser.

NEWSCASTER 2: Flynn pled guilty to repeatedly lying to the FBI about whose December 2016 conversations with Russia's then ambassador to the U.S., Sergei Kislyak.

NEWSCASTER 3: And that created a situation where the national security adviser essentially could be blackmailed.

NEWSCASTER 4: The significance here seems to be that, him pleading guilty opens the door on a pathway directly to President Trump.

NEWSCASTER 5: The ongoing Russia investigation has reached President Trump's innermost circle. Michael Flynn says that he is cooperating with the special council's pro.

NEWSCASTER 6: The President believes that Flynn was treated very unfairly by the Office of Special Counsel, and The President tweeted this morning, "Good luck today in court to General Michael Flynn".

AMT: Well there was a surprise to us yesterday when the latest chapter in the saga of Michael Flynn was written in a Washington courtroom. The former national security adviser was prepared to receive his sentence for lying to federal investigators. He is the highest ranking former Trump aide to face sentencing, in special counsel Robert Mueller's investigation into Russian interference with the 2016 U.S. presidential election campaign. And thanks to his quote "substantial help" with criminal and investigations, prosecutors had recommended leniency. Instead, the judge deferred his sentencing, but not before delivering a harsh assessment of Mr. Flynn's crimes and openly musing, at one point, whether he should be charged with treason. Michael Flynn is due back in court in March but the Mueller probe continues. And joining us to bring us up to speed on its many tentacles is Dahlia Lithwick. She covers the courts and the law for Slate. She hosts the podcast Amicus. And she joins us from Brooklyn. Hello.

DAHLIA LITHWICK: Hi there. Thank you for having me.

AMT: Well before we get into the broad strokes, Dahlia, what's the significance of the decision to delay Michael Flynn's sentencing hearing?

DAHLIA LITHWICK: I think that Judge Sullivan, as you said, really lit in to him and, I think, surprised everybody by just the intensity with which he even sort of implied at one point that the prosecutors should have charged him with treason. He was walked that back, I think, when he realized that he'd freak everybody, including the special counsel lawyers out. But I think what he did at the end is he asked Flynn if he wanted more time before sentencing. Flynn said yes. So I think the implication is Flynn has now got the opportunity to cooperate even further with the Special Counsel's Office that maybe that will allow him to be more lenient. I think the essence of what Judge Sullivan was doing in that courtroom was saying, 'I know they recommended no prison time but I don't have to be bound by that. I can throw the book at you and so you have a little time to prove to me that you're really working with them'.

AMT: So it'll be interesting to see what comes out of that, what Michael Flynn might say next semester Mueller.

DAHLIA LITHWICK: Yes. He has cooperated extensively. It's interesting because he has cooperated both in this investigation and in New York with federal prosecution around Trump in the campaign finance-- I'm sorry that's not Flynn, that's Manafort. You can tell how confusing it is. Flynn has cooperated.

AMT: Well there are so many tentacles to this. So let's go through a little bit of this. What we learned earlier this month on December 7th when the special counsel's office submitted a court filing outlining the Russia probe?

DAHLIA LITHWICK: We've learned several things. We've learned that they are really honing in the money component. And I think it's really important to understand this as a massive counterintelligence probe. What they're trying to figure out and, we'd lose this, is whether it was so involved with Russia, and whether people around him lie to protect him in ways that compromised him so that Russia had leverage over him. And that is how this probe started and that really is the thing I think we have to keep at front of mind now is- whether all these folks got themselves into a position like Flynn, where the active what Flynn was doing which was having conversations with the Russian ambassador that he lied about. The lying is the problem because that meant that Russia had, then Trump's national security adviser, on the hook and could be susceptible to all kinds of manipulation. So I think the scope of what we're now seeing is, as they engage in this counterintelligence investigation, there are two big components. The one is this kind of Russia money piece. So for instance, we know now that Michael Cohen was lying about having ongoing conversations with Russians about a Trump hotel in Moscow long after they said it had stopped. It had continued right up until now it looks like Rudy Giuliani having read up until the election. So that's a piece of it, were Russians putting all sorts of money and promises into the Trump campaign to influence the election, and was Trump susceptible to manipulation? The other piece that is coming into focus now is the obstruction of justice piece, which is essentially Mueller’s tasked was figuring out whether Donald Trump firing people like Jim Comey, getting rid of sessions, were in effect attempts to obstruct justice, to obstruct this very probe. Those are the pieces of it. There are other criminal elements that have been redacted. So we don't know. We know for instance Michael Cohen cooperated in other criminal inquiries. We don't yet know what they are.

AMT: We have also learned now that the owner of the company that owns the National Enquirer has admitted to that catch and kill - or whatever they call it - when they refuse to run the stories to protect The President then tell all stories of two women.

DAHLIA LITHWICK: That's right and that's important too. That came out last week in the Michael Cohen revelations. In effect what it means is that in addition to all these other inquiries there is an inquiry going around. Again, this is a federal prosecutor in New York. It's not the Mueller probe. But it's looking into is whether Cohen and Trump committed these massive campaign finance violations by using finds to affect the outcome of the election. And you're quite right, one of the really shocking part was that the National Enquirer is in a cooperation agreement with the federal prosecutors, and they admitted that they were doing this catch and kill. They were buying me stories from these two women that Trump allegedly had affairs with, and then sitting on them, not publishing them and using the money to affect the campaign. Now Trump's defense to that, interestingly, is like, "No no no. We weren't catching and killing". First of all he denied that he had the affairs and he denies that the money was improperly paid. But now the claim seems to be 'we were doing it to protect the family and not around the campaign'. But you're quite right, when the Enquirer admitted that they had been involved in this is certainly now looks as though it was at the direction of the campaign for campaign purposes. That puts them on the hook. The Trump campaign for these election campaign finance violations.

AMT: I want to go back to this hotel in Moscow because it is key as well. And in December 9th interview on Meet the Press, Republican Senator Rand Paul said Mr. Trump did nothing wrong pursuing a hotel development in Russia during the campaign. Listen to them.

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VOICE 1: Let me ask you, though, about the allegation that Michael Cohen had circulated this false testimony to Congress.

VOICE 2: About what issue?

VOICE 1: About the issue of the Trump Tower Moscow project. How does that sit with you?

VOICE 2: I guess I don't quite understand it, because I don't know what's illegal about trying to build a hotel in Russia. I see no problem with someone running for president trying to build a hotel somewhere. If you were asking and saying I will give you something in exchange for letting us build a hotel, that would be wrong. But I never heard any evidence of that. Just trying to build a hotel somewhere, I can't imagine how that would be criminal.

Well that's one view. But why are others, Dahlia, saying that the development of Trump Tower in Moscow became so problematic?

DAHLIA LITHWICK: Well for one thing again, it's always the lying that gets you. And so many of the folks who've been charged have been charged with making materially false statements. And Trump, throughout the campaign, was saying, 'I have no business in Russia. I have no dealings with Russia that Russia has no impact whatsoever'. And so it turns out that he was lying about that, but more importantly he was doing things that at the time seemed crazy, including talking about lifting sanctions against Russia, talking about materially helping the Russians to gain better positions in all sorts of ways. Nobody could understand at the time why Trump was way off, even the Republican Party reservation and talking about Russia in terms of having warm and open flourishing friendship with Putin, regardless of what has happened. Now it really does look as though there was some kind of quid pro quo. There was a promise, it appears, if I build this Trump Tower - and by the way there is a promise of a penthouse for Putin himself which is almost that cherry in top - and in exchange for which, it looks like Trump changes his campaign position on Russia. So there does look like a quid pro quo for lying about it. And plus, and I think this is really important, we have to keep following them money. And one of the reasons this is so fascinating is because we know that there has been Russian money - it seems - all over this campaign, all over that, the Maria Butina plea that she just made. So we know that Russian money was pouring in in all sorts of ways. And it is the core mission of the Mueller probe at this point to determine whether that Russian money affected the outcome of the election, and if Trump was doing anything because he felt that he was going to be given material benefits. Then that's important for us to know. So I think it's the lying plus the money that it gets him here.

AMT: What does this spell legally for Donald Trump?

DAHLIA LITHWICK: Well that's kind of the question that's left. We know that the Justice Department position on indicting a sitting president is that it is not done. There is hot hot debate among constitutional scholars right now in the country about whether that's appropriate, whether that can change. But I think at least right now the reason he's being called 'individual no. one' in the court papers is because I don't think there's any intention, at least on Muller's, part to indict him while he's sitting. I think what we're going to see happen is exactly what the framers of the Constitution anticipated, which is that a sitting president doesn't get indicted certainly while he's in office. And that means that it's up to the people to decide whether there will be repercussions in the way of an impeachment. But I think that it is fairly clear right now that, at least at lease for Mueller's purposes, what we're going to see is a report that may include criminal behavior, but I think that his posture right now is that the Justice Department has tasked me with doing an investigation. It's up to the Congress to impeach.

AMT: Okay well I'm going to pick up that point with my next guest. Dahlia Lithwick thanks for your time. Thank you.

DAHLIA LITHWICK: Thank you for having me.

AMT: Bye bye. That is Dahlia Lithwick. She covers the U.S. courts and law for Slate. She is the host of the podcast Amicus. And we reached her in Brooklyn. Well yesterday a surprise twist in court was another reminder that no one knows exactly where this story goes from here. My next guest says he is sure of one thing, that Donald Trump will not be the president by the time the next election comes in 2020. Robert Kuttner is the co-editor of The American Prospect. He is a professor at Brandeis University's Heller School of Public Policy. And he joins us from Boston. Hello.

ROBERT KUTTNER: Hello to you.

AMT: Why are you so sure?

ROBERT KUTTNER: Well sure, I think, is a bit of an overstatement that you never know with Trump, but I'm pretty confident that this has to lead to an impeachment. You've had impeachable offenses hidden in plain view from the beginning. What the special council has done is he's filled in a lot of the details and - picking up where Dahlia left off - the one set of details we don't have yet is all of the details on other money trails. We do know that Russia, people close to the Kremlin, people close to Putin have been bailing out Trump's failing businesses for years and years and years. So there's a whole web of Russian connections we don't know all the details of yacked. But I think what happens is that as the Mueller probe winds down, the Democratic Congress takes over, you've got at least two congressional committees they have subpoena power who are going to go even deeper. And I think the way this plays out is that you don't go directly to impeachment. You build a case, step by step by step, of all of the impeachable offenses and then the case for impeachment becomes overwhelming. You were promoting the second segment on this show with Marley's ghost, it reminds me of the ghost of Nixon past, because this is very much following the Watergate trajectory which actually took more than two years before we got to an impeachment.

AMT: And I remembered, too, that Nixon was an unindicted co-conspirator, right, he was never indicted.

ROBERT KUTTNER: Yes. And that's very important because the second Special Prosecutor Jaworski made the decision to name him as an unindicted co-conspirator. The implication of that is that he could have been indicted. And I think Mueller by calling Trump 'individual one' and implicating him in indictable acts' suggest that Trump could be indicted but - as Dahlia said - the custom, the norm is that you don't indict a sitting president. You let the impeachment process play out.

AMT: I have a few more questions just about the legalities, but let's stay with Congress for a minute. The President has maintained the support of Republicans in Congress especially in the Senate. So would not the Republican senators make this go away?

ROBERT KUTTNER: Here's a likely scenario. So let's assume that the House does an impeachment investigation and they impeach him. And of course impeachment means bringing him up on charges, it doesn't mean removing him from office. Under the Constitution, that's up to the Senate. Now at that point it becomes increasingly embarrassing for Republicans to keep defending what are clearly impeachable offenses. You also have the politics of this. You have seven Republicans with vulnerable seats in 2020. One third of the Senate is up for election every two years. You have another seven who were vulnerable who are up in 2022. And then in addition to Republican senators looking to their own skins, you have the possibility that - let's say, the impeachment happens in the summer or the fall of 2019, that's still 15 or 16 months ahead of the election. You can imagine Republicans saying, 'let's just get this guy out so that we can have a clean slate with President Pence', now the vice president who becomes president, instead of having to drag down the entire ticket in 2020. There is no love lost between the Republican Senate and Donald Trump. This is a totally transactional expedient opportunistic mutual relationship. When Trump becomes excess baggage, you do have the prospect of the ship deserting the sinking rat.

AMT: Could you have a scenario where it got to the point where Mr. Trump just decides to resign and avoids that?

ROBERT KUTTNER: Well I think the analogy there is what happened with Vice President Agnew, another corrupt public official. There could be a deal where the various prosecutors could say to Trump, 'If you will just go, just leave office, we will spare you and your family further prosecution'. That's the most imaginable deal where are Republicans in the Senate confer with the prosecutors and offer a trump this deal. And Trump, knowing that he is vulnerable to prosecution after he leaves office, and caring about his brand, caring about his money, caring about his family, could very well take the deal. So I think those were the two most likely scenarios. Either the Republicans decide that he's become excess baggage and they decide to ditch him, or there's some kind of an agreement where he agrees to resign in exchange for not being prosecuted’.

AMT: Now, some people say the biggest threat to Mr. Trump is not the Mueller investigation, but in fact the investigation coming out of New York into his business affairs.

ROBERT KUTTNER: Well the two overlap because to the extent that Mueller is investigating his ties with Russia, and to the extent that Russia has long been the financier of the Trump organization, you do get the risk to [cutting] Trump from both investigations, that as we follow the money, and we learn more about the money, that that's where he's most vulnerable. And just in case the two prosecutors don't finish the job, we have to invest again in committees in the house just raring to go to subpoena his taxes and to subpoena financial records and other things. So I do think this converges on an end game where it is virtually inevitable that he will be impeached. And then whether the Senate decides to convict, that's more a matter of political expediency.

AMT: Okay so before I let you go, just briefly, Mr. Trump has said the American public could rise up and revolt if he was treated this way.

ROBERT KUTTNER: Well if you play that out what does that mean? I mean some of Trump's supporters would hold rallies in the street. But we do have local police forces. We're not going to have a kind of Mussolini style coup d’état where Trump's army overthrows the government. So this is just more Trump huffing and puffing. One other comment, if I have 10 more seconds. The way Trump bungle the shut down the government, republicans were deeply embarrassed and humiliated by this. They're going to get tired of it.

AMT: Okay well we have to leave it there Robert Kuttner. Thank you for your time.

ROBERT KUTTNER: Thank you for yours.

AMT: Robert Kuttner co-editor of The American Prospect, a professor at Brandeis University Heller School of Public Policy. He joins us from Boston. Let us know what you think. Tweet us @The CurrentCBC. Find us on Facebook. Go to our Web site cbc.ca/thecurrent. Has something turned now? What do you think? I'm Anna Maria Tremonti. This is The Current. The news is next and then the Ghost of Marley joins us.

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'We were able to get one over on death': Author describes finishing novel for friend who died of breast cancer

Guest: Rebecca Mascull

AMT: Hello I'm Anna Maria Tremonti and you're listening to The Current.

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AMT: Still to come: When Donna met Floyd. It is not a love story but a cautionary tale. Our documentary tells the story of the niece who fought to have her aunt's marriage overturned, because Donna suffered from dementia and Floyd married her without her family knowing. A story of predatory marriage, in half an hour. But first, what the Dickens?! A new spin on a holiday classic.

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JACOB MARLEY: I wear the chain I forged in life I made it link by link and yard by yard. I girded it on by my own free will and by my own free will I wore it.

UNCLE SCROOGE: You have my sympathy.

JACOB MARLEY: Ah, you do not know the weight and strength of strong chain you bear yourself. It was long as this seven Christmas eves ago and you have laboured on it since. Ah it is a ponderous chain.

AMT: This is the haunting words of Jacob Marley's Ghost delivering a final warning to his old friend, Ebeneezer Scrooge. That's from the 1951 movie adaptation of the Charles Dickens classic, A Christmas Carol. It's a story of greed and poverty, reflection and rebirth and there are no snowmen or elves in its pages, but it is a story that continues to be read and loved every year around this time. It's certainly a special place in the heart of writer Vanessa LaFaye. She set out to write her own book telling the story of Clara Marley. She's the sister of Jacob, the greedy money lender and former business partner of Ebeneezer Scrooge. But before she could finish her story of Clara, Vanessa LaFaye died of cancer. That was earlier this year. But her friend and fellow author Rebecca Mascull picked up the project and finished the novel in time for the holidays. The book is called Miss Marley, and Rebecca Mascull joins me from Lincolnshire, England. Hello.

REBECCA MASCULL: Hello.

AMT: What is it about a Christmas Carol that continues to be popular, 175 years after it was first published?

REBECCA MASCULL: Well I think it's one of those books that is a perennial favorite. Especially because it's a Christmas book, it comes back year after year. And I think it's a beautiful Christmas vision. But in this country I think directs a lot of our nostalgia for our Christmas traditions in Britain. I don't know about in Canada, but I think a lot of our imagery that we have of Christmas comes from the idea of the Dickensian tradition. But I think also, despite being about Christmas, it's also a universal story really about change and redemption. So I think that's why it's still relevant today and probably always will be.

AMT: Remind us of the role Jacob Marley plays in the Christmas Carol.

REBECCA MASCULL: Well I think Marley is actually extremely important. He is the central character to Scrooge's story, without him Scrooge would not have been set on his journey to change. So I think he's a messenger figure really from classic narratives, that kind of figure that brings news that sets the hero off on his journey. He's also a kind of gatekeeper figure, I feel, to the land of the dead, if you like. He comes bringing bad tidings actually. And he is the classic cautionary tale. I think he's bringing the message and he says it himself, that if your spirit doesn't go forth in life, then it's condemned to do so after death. So he makes it very clear that mankind should be your business, and if you don't make it that in your life you'll be doomed to wander forever. So, yes, without him we wouldn't have all of the visitations that Scrooge has. So I think he's very important and Vanessa saw that and was fascinated by him.

AMT: Why did you want to explore his early life?

REBECCA MASCULL: I think the question that was left in her mind from being a big Christmas Carol fan as she was, was what else could he have done in life to have been punished so harshly for the rest of eternity. So she wanted to explore his backstory.

AMT: And I'm trying to remember, was there a Clara Marley character, even a small character of Clara Marley in Christmas Carol?

REBECCA MASCULL: No, indeed not. This is a character that sprung completely from Vanessa's imagination.

AMT: As we heard in the movie scene, Jacob Marley wears the chain that he forged in life and he made that link by link. What was the chain that he had to wear after his death?

REBECCA MASCULL: That chain, if you like, is linked by link as you say all of the selfish deeds that he committed over his life.

AMT: And of course we learn that his antisocial personality and greediness was formed because of the cruelty he experienced as a child. Was it really fair to be forced to wear that chain forever because of his own childhood traumas?

REBECCA MASCULL: Certainly seems that harsh punishment, doesn't it? But I think that's what Vanessa wanted to do was tell the story of how he lived his life, and she decided that she wanted to make him and his sister classic Dickensian orphans out on the street and to have a very difficult life. What happens in their life and how he ends up having such a bad end, obviously people will have to read the books to find out what he did.

AMT: What was your reaction when Vanessa LaFaye told you she was going to reimagine the story, one of the most famous classics of Dickens?

REBECCA MASCULL: Oh I thought it was a brilliant idea and typical of her. And we both loved Dickens. We were a huge Dickens fans and when we first met we talked a lot about Dickens. Because even though lots of people love the TV and film versions, we couldn't actually find that many people who loved reading the books as much as we did. We just loved the prose the way that Dickens wrote and we were both particularly obsessed with a Christmas Carol. We discovered this quite early on in our relationship. And she even mentioned to me one day maybe we should start a Christmas Carol Appreciation Society, because we just love the mythical quality of it so much but also the beauty of the writing. So when she came up with the idea I just thought what a fabulous idea. And I knew that she would do a great job.

AMT: Did you see any of Vanessa in her creation of Miss Marley?

REBECCA MASCULL: To me Vanessa was a person who loved life and who was kind and generous and a very generous friend, and would go to great lengths for you as a friend. And all of those qualities are in Miss Marley, but Miss Marley because of her time in her situation is quite a shy person, quite retiring, and that is the opposite Vanessa. She had a great sense of humor. It was very irreverent and just loved life you know. So there are things that are like her and not like her at the same time.

AMT: Now she was an accomplished writer and in 2015 when she was promoting her book, Summertime, she spoke about how important work was to her. Have a listen.

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Work has got me through some of the toughest times in my life. And I think it's because it gives you an oasis of normality when your life is just going crazy around you. It allows you to live in your head when you're in the middle of an emotional storm. And for me, that's been very much a rest fight and a refuge when the rest of life is just pretty miserable.

AMT: Rebecca Mascull, what do you think when you hear her voice today?

AMT: Oh I didn't know it was going to hear her voice. It was lovely to hear her voice. Yeah, that's a long time since I've heard that.

AMT: How did you come to know her?

REBECCA MASCULL: Well we met through Twitter which is this kind of water cooler for writers. We were sort of quite isolated sitting at our desks, so social media is a lifeline for us. And we were reading our first books at the same time. So she was reading The Visitors, my first book, and I was reading a book, Summertime. And we both loved each other's books. So we started chatting on Messenger and got on like house on fire from day one, and it was around that time as well that we both joined a writers collective that was just starting - called the Prime Writers. And this was a group of writers who'd all had our first novel published age 40 plus. So we were at a very similar stage in our lives, in our career and so we realised that we both had a lot in common as writers, because we were both historical novelists. And we discovered that we had this sense of humour as well in common, this irreverent sort of feeling about life. So even though we both wrote serious books, we liked to laugh a lot.

AMT: And when did you discover you were both Charles Dickens geeks?

REBECCA MASCULL: Oh very early on. And the reason I know that is because, after she died, I was writing a card to her husband and I just sat and stared at this card for ages. I couldn't think what to say. So I thought I would look through some old messages of ours. And I scrolled through them all right back to 2014 when we first met, and the screen kind of stuck and it wouldn't load any more. And it stopped at a message which said, "You and I--" and it was Vanessa's message and she said, "You and I should start up a Christmas Carol Appreciation Society", as I mentioned earlier. And it was really odd because I had no memory of that message at all. So we must have been talking about Dickens from the off. How we got to talk about Dickens, I don't know. Maybe we just said who's your favorite writer and we both said Dickens, because he's certainly mine.

AMT: What was her outlook on her life and death with cancer?

REBECCA MASCULL: Unnervingly positive in general, but like any human being, being faced with that, she had her good days and bad days. And yet what amazed me about her was that she's so incredibly open about the whole thing. And she wrote a beautiful blog - which you can still see - that detailed every day or every week of her-- of her dying, if you like. She wanted to be very honest about her. I think she hated the idea that death was something that people whispered about and shouldn't speak about. At the same time she didn't always want to talk about cancer, you know. So we would talk every now and again quite often on Skype because she said, "I want see your lovely face" that's what she would say. And we would chat on Skype and we'd talk a bit about the cancer and then we'd say, "Let's not talk about that anymore" because she didn't want it to define her every day. You know she wanted to talk about books and other things that were important. So it in no way defined her. And yet it was there in the background, if you like, the whole time I knew.

AMT: And in fact her blog was called Living While Dying, that she was still living.

REBECCA MASCULL: And it was beautiful, absolutely, yeah. Living every moment to the fullest, she always did.

AMT: Tell me about the last time you spoke with her.

REBECCA MASCULL: Well we messaged more than spoke. We messaged regularly all the time on and off. And there were a couple of last times. One that really sticks in my mind was a few weeks before she was on a ship somewhere in New Zealand, because she was going on a sort of last trip of a lifetime and she was messaging me about Christmas Carol and asking me questions like, "When Ms. Scrooged apprenticed and how old was he when his sister died?" And things like this. So it was quite late at night for me and I went downstairs and hunted out one of my many copies of Christmas Carol and started flicking through it, and finding her answers to her questions and discussing it with her and sending her pictures from the book. That was a few weeks before and she was deep in writing Miss Marley at that time and absolutely determined to finish the book as well. And then, about three or four days before she died, she messaged me and said, "I'd love to talk about my next project with you". And, "Can we have a chat?" And it was actually my daughter's birthday that day. So I had to take her out to her party and I said, "Oh I can't today because it's Poppy's birthday but I will talk to you next week, is that okay?" She said, "Yes that's absolutely fine". [Unintelligible] I'll get the birthday over and done with and then I can talk to Vanessa, but anyway she died three days later. So we never got to have that final chat, unfortunately.

AMT: I'm sorry.

REBECCA MASCULL: Mmm.

AMT: How did you come to finish the book?

REBECCA MASCULL: Well it was about two weeks after she died. I was contacted by Harper Collins, Vanessa's publisher, and she had completed around about two thirds of it, about 22,000 words she'd finished, and her editor Kate Mills emailed me and said, "Would you consider finishing the final third of the book?" And as soon as I saw it I knew I would say yes. I mean I didn't have to think about it. It just felt right. I think because we both loved Dickens and particularly A Christmas Carol. I mean I've collected copies for years and just adore it. I think also because, from the first moments that we started talking, we knew that we were quite similar writers in terms of our style but also our preoccupations, the things that we like to write about, and that we been talking about A Christmas Carol in the last few weeks before she died. So it just felt right. I felt incredibly grateful and lucky and privileged to be asked, but I didn't for a moment have any doubt that it felt like the right thing to do.

AMT: How did you figure out where the book should go in terms of the plotline?

REBECCA MASCULL: The truth is that we didn't have a very clear idea of how Vanessa wanted to end it. She was a great planner, like me, we are both the same in that, again. We planned our novels very very in much detail, but she was writing against the clock on this one, and she had very little written down about how she wanted the end to be, a very brief synopsis, but it was quite vague about the end. So when I agreed to complete the novel, I was sent her 22,000 words that she'd written. And I read it in depth, scribbled all over it and it was just the novelist in me came out. And I couldn't help myself start to write down some ideas for how I felt it should end. But I seemed at that point because I didn't know that she had detailed how she wanted the end to happen. So when I went to the first meeting with Harper Collins, I thought they would say, "Here you go, how she wants it to end", but just being a novelist I couldn't help but write down a few ideas myself, but thought I would never use them. But it turned out that they thought I might have an idea of how she wanted to end it. And I didn't. And they didn't either. And I spoke to some of her nearest and dearest and they didn't either. So it was all a bit vague. So I said to Harper Collins, "Well I've got some ideas. Do you want to hear them?" And they said, "Yes please". And so I gave them my ideas and really those ideas were just what I felt naturally flowed from the characters in the situations that Vanessa had set up, where I felt the narrative should go. And I also felt that there must be a couple of elements in any story set around A Christmas Carol. And one of those was I felt, it should have Christmas in it. You know it should end at Christmas, that's not giving too much away. But I won't say any more because I don't want to give away the plot. But you know it just where I felt really naturally the story flowed. But of course that's my vision. If Vanessa had finished it, or someone else finished it, it would have been done differently and we can guess till the end of time about what that would have been. And to think that she wrote that in the last few weeks of her life, some of which was written literally the day before, as I understand it, it's extraordinary. It was barely edited at all and it's just perfect just as it was. I mean there was odd little word here or there that we changed, but in general it was exactly what you will read in the book is exactly what Vanessa wrote. And so, yes, it was it was made clear that really all we needed was the last few chapters which is what I did. Yeah.

AMT: Did you feel her presence while you were finishing this book?

REBECCA MASCULL: Hmm yeah that's a good question. I did feel very very close to her when I was writing it. I wrote it very quickly. I wrote-- it was about 12,000 words and I wrote it in five days. It just kind of flowed out of me. And because I was inside her world, inside the world of her characters that she had created, Clara for example, who she created. I felt very close to her being inside her world, if you like. In a world that she was talking about in that clip you played earlier, you know, this world that novelists live in inside their head. I was inside her head and that was a wonderful place to be but also a very sad place to be. It was bittersweet because I felt close to her, yet irrevocably far away at the same time. There was a moment when I was writing one scene. It won't give much away to say, it's a scene where Clara is walking through London and looking around London, as Dickens used to, and just look at the river of life flowing past her, if you like. And I remember sitting at the computer staring at the screen and thinking, not sure how to word this or phrase it and sort of coming out of the story and into my own head, and thinking I've got to get back in the story. And then my fingers just started typing and I looked away from the screen and just watched my hands really and that whole scene just came in one sort of flood. And when I look back and read it I didn't really have much consciousness of having written that scene. So that was a very strange moment. And you can read into that what you will, but it did feel like a kind of channeling, but I don't actually believe in anything like that really. But it depends what you believe how you want to see that moment. But it was a very odd and special moment in the writing of this book.

AMT: How did it feel when you finished writing the book?

REBECCA MASCULL: Oh sad. Yeah sad and yet relieved. Every novelist is relieved when they finished the first draft but sad at the same time. So whenever I've finished a book, you feel this tremendous relief that you've got it out because it's a tremendous mental effort, but you also grieve for what you've left behind, the world that you've left behind you. Well certainly I only truly inhabit when writing my first draft. You'll sort of deep inside your subconscious and this is an extraordinary feeling. It's kind of mentally exhausting, as I said, but also it's energizing. So when you leave it you do feel a sense of sadness and grief that you will never inhabit that world or be with those characters again. But for me finishing Vanessa's book it was a kind of the grief was doubled if you like, because I was close to her. I felt close to her when I was writing it and it was only a few weeks after she died. So when I finished it it was like saying goodbye again. So it was-- yes, it was a sad moment.

AMT: You know in libraries around the world, and I'm guessing in bookstores, Miss Marley will probably be next to A Christmas Carol on the displays. How do you think that would make her feel?

REBECCA MASCULL: Oh She would love it. She would love it. She would love sitting here talking to you. You know she should be here talking to you. She should be doing all the stuff I'm doing you know for her to help publicize this book. And she just loved this whole part of it. She worked very hard at her writing and she loved the whole bit where it went out there into the world and readers started to read it. And she adored Dickens so much. I think she would just absolutely be over the moon to see it in a book shop next to one of her favorite books of all time.

AMT: Well it's a telling little detail in the friendship that only her name is there on the cover because you want to give her the credit for all of it.

REBECCA MASCULL: Well it's her book. It was her right there and her vision. And you know she fully intended to finish it and as I say was writing right up till the end. And I think if she'd lived another couple of weeks she probably would have finished it. And that's the really sad thing. So as her friend and fellow writer, I suppose, I was just there to help her complete her vision. And one of the last conversations we had actually, we were talking about her legacy and I said, "The thing is Vee," because I always called her Vee, "You will live forever because your voice will live forever in your books". So the lovely thing about being able to finish Miss Marley for her was that we were able to kind of get one on death if you like and let her last vision live forever in that book.

AMT: It's a beautiful story and it's a beautiful backstory of friendship.

REBECCA MASCULL: Thank you.

AMT: Thanks for speaking with us. Thank you for this.

REBECCA MASCULL: Oh, thank you for having me. It's been an absolute joy.

AMT: Rebecca Mascull, she joined me from Lincolnshire, England. She and her good friend Vanessa LaFaye are the authors of the new novel Miss Marley.

SOUNDCLIP

FRED: Oh. Uncle Ebeneezer.

UNCLE EBENEEZER: Fred, is it too Late to accept your invitation to dinner?

FRED: Too late. I'm delighted, delighted. My dear, look who it is.

UNCLE EBENEEZER: Can you forgive the thick headed old fool for having no eyes to see, with no ears to hear, with all these years.

AMT: From the 1951 movie Adaptation of a Christmas Carol. Stay with us. In our next half hour, we have a documentary, When Donna met Floyd. I'm Anna Maria Tremonti. You're listening to The Current on CBC Radio One, Sirius XM, online on cbc.ca/thecurrent On podcast and on your radio app.

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He married her in a 'campaign' to take her money: How a woman with dementia fell into a predatory marriage

Guests: Donna Devore-Thompson, Jill Loughlin, Emily Clough, Kimberly Whaley

AMT: I'm Anna Maria Tremonti and you're listening to The Current. When an older woman met a younger man in Coquitlam, B.C. back in 2006, no one could have predicted how the ensuing years would unfold that a decade later, the tale of their relationship would be told in the Supreme Court of British Columbia, that it would have a rare outcome, or that it would be, perhaps, a cautionary tale to the country's lawmakers. Today we are re-visiting a story first brought to us in September by The Current's documentary editor, Joan Webber. Here is "When Donna Met Floyd".

SOUNDCLIP

[phone dialling]

JOAN WEBBER: Oh hello. This is. I'm almost surprised when someone picks up after the first ring. I've been dialling a lot of numbers trying to reach a man named Floyd Sheldon Poulain. I know this won't be him. This is a random Poulain, but I check. Are you related to him?

VOICE 2: Yes.

JW: As luck would have it, I've reached a younger brother on the east cast. I ask how I can reach Floyd.

VOICE 2: I once in a while get a call from him, but I don't have a contact number for him. He's in British Columbia.

JW: So no number. An email maybe?

VOICE 2: Not even that dear, but any call anytime from him actually.

JW: Yeah. Would you be able to get him a message?

VOICE 2: Yeah you can do that. I'll just grab a pen and paper.

JW: Now I'm not sure whether Floyd will call me back, but I will keep trying. I have a lot of questions. He's central to the story I'm about to tell you.

VOICE 2: 4-5. Got it.

JW: Thank you sir. But regardless, I can tell you what happened.

[Music]

DDT: She was very independent. You know, she was a fun aunt. She was my. I used to call her my Mary Tyler Moore aunt.

[Song: Mary Tyler Moore Show Theme]

DDT: She always had her hair done. Her nails were always done. She was cool. She drove a cool car. She's a Christmas.

JW: Donna Devore-Thompson sits beside me. She's showing me old family videos off her phone. They're of her aunt, Donna Walker.

DDT: Well I was named after her, but that doesn't mean that we were close, but we were.

JW: The two became known as Big Donna and Little Donna.

DDT: OK. So this was my aunt when she married her first husband.

JW: She shows me photos too.

DDT: Don't look at my. This is in the 80s. That's me.

JW: Blonde, puffy satin sleeves, big hair.

DDT: We always used to laugh because my aunt had a very big head and she could never find a hat.

JW: Big Donna, her aunt, wears short auburn hair and a slightly mischievous grin.

DDT: You know if you were mad at your parents, I would send her letters saying I want to move to Vancouver and live with her.

JW: Later, when she was older, Little Donna did move to Vancouver from Edmonton where she'd grown up.

DDT: Probably every week she'd drive out to see me.

JW: The two Donna's took to having what they called Donna days.

DDT: It was a great day and it always ended with some wine in her apartment, maybe ordering some pizza.

JW: But around 2004, Little Donna began noticing Big Donna wasn't entirely herself.

DDT: I noticed that she was starting to repeat things.

JW: Donna Walker became forgetful and people close to her were noticing that she would say funny things. Then in November of 2005, she went to a doctor who diagnosed her with the onset of dementia, probably Alzheimer’s. She was 66-years-old. In the coming months of 2006, there were incidents Little Donna couldn't ignore.

DDT: She actually walked inside of a neighbor's house, thinking it was my house and he was quite sweet. He actually took her around door to door until they found me and when I opened the door she just went, oh here she goes. Like it was almost like for you and I, we'd would be mortified.

JW: Then that same year, a stranger would come to Donna Walker's home.

DDT: I remember my aunt was telling me there was some man that was hanging around outside.

JW: Little Donna asked her aunt if she should come over or call the police, but she said no. She figured the man would likely just go away.

DDT: Then I remember her telling me she has this new friend and she told me his name. And I said where did you meet this guy and she told me he was five buck guy. And I said, five buck guy? And she goes, yeah, he borrowed five dollars from me in a parking lot.

JW: And I said, so this was the man he was hanging around her apartment. He was trying to give her the five dollars back.

JILL LOUGHLIN: It was you know a huge red flag for us. Huge. Like who is this person?

JW: Jill Loughlin is Donna Walker's other niece, little Donna's sister. She lives in Edmonton. Jill was also close with her aunt and they talked regularly.

JL: And you think so is this person friend or foe?

DDT: He would wait outside her apartment or he would see her in the mall and maybe even help her carry her bag back. Just doing things for her. I think that's kind of how he got into being her friend.

JW: This friend was Floyd Poulain. A 56-year-old man who said he was a crane operator. At first both nieces were wary and would ask after Floyd. Had there aunt seen him or had he been around? But after a while, much to their relief, their aunt stopped talking about him. Donna Walker's condition continued to deteriorate. After an accident involving the gate at her parking garage, her driver's license was revoked. And in the New Year 2007, a geriatric specialist advised Donna Walker that it was time to get her affairs in order. She agreed and with the help of a notary gave her niece Donna and a close friend Shirley, power of attorney.

DDT: And she kept saying to me protect my money protect me. And I remember her telling me that she doesn't know where this disease is going to take her, but just always remember that I love you. My aunt would have gone to the ends of the earth for any of us in our family and back. And you know I felt that she had asked this of me and I'm going to do whatever I had to do.

JW: Then when Little Donna took her aunt on a couple of trips to see family in Edmonton, including Christmas in 2007, Big Donna's decline was evident to everyone.

DDT: My mom and dad have lived in their house for over 50 years and my aunt knew that house inside and out and she didn't know how where to find the basement.

JL: She didn't know how to get to the bathroom.

DDT: Didn't know where the coffee pot was.

JL: She seemed to be having trouble lifting her fork to her mouth.

DDT: I caught her trying to sit down with her head on the chair. She didn't know what she was doing.

JW: Suddenly this video from a Christmas years ago seems so remote. In it you see a cheerful Big Donna, giving her great niece, Jill's daughter, a bracelet that's just a little too big for the toddler. It was Donna Walker's actions in and around 2008 that got her niece really worried.

DDT: I think raising my alarm bells was when the bank was calling me, Karen Nelmes.

KAREN NELMES: Mrs. Walker was taking more than was a reasonable amount of money for her to be taking out. It wasn't in her normal banking practices for sure.

JW: Karen Nelmes is retired now, but at the time she was the manager of customer service at Donna Walker's bank branch in Coquitlam, B.C. And after years of being married to a police officer, she describes herself as a naturally suspicious person and she wanted her clients niece to know something.

DDT: There seemed to be a man hanging around her.

JW: And that man was Floyd Poulain. And they believed there were other strange things. Particularly memorable for both of Donna Walker's nieces was what happened in the spring of 2009, when their aunt suddenly became convinced of one thing.

DDT: She kept talking about moving. She didn't like her condo. Didn't like her condo.

JL: She just didn't.

DDT: And she kept talking about it and talking about it and talking about it.

JL: And I got suspicious. I ended up going on the MLS website where you can view properties and I put in her address to see if it would come up and sure enough it did.

DDT: And sure enough there's her condo for sale.

JL: You're actually. You're flabbergasted because you can't believe this actually happened, but you're not surprised, part of you.

JW: It was a medical report regarding Donna Walker's cognitive condition, along with the legal arrangements they put in place to protect her, that enabled them to cancel the listing. They went to Big Donna's to break the news and it was there they met Floyd for the first time.

DDT: He walked in from the balcony and we were like, oh. OK. Nice to meet you and we sat there. It was very awkward.

JW: Floyd was quiet and he didn't stay long.

DDT: My aunt was quite upset and crying and all she wanted was hardwood floors.

JW: Not only had their aunt been intent on selling her condo. She had it in her head to buy another. Same building, same layout, just one floor up.

DDT: Which made absolutely no sense.

JW: Then in 2010, Little Donna got a call she will always remember.

DDT: From Karen Nelmes at the bank and said I've got some news and you won't believe it.

JL: He'd come in saying that they were married.

DDT: I was really upset.

JL: Oh my God. We were.

DDT: I think I'm going to cry now. Sorry. It's so awful to think about it.

JL: He just you know married her without anybody knowing.

EMILY CLOUGH: And that's all it really takes to get married is you just need that one moment of time. And in this case that marriage happened inside the marriage commissioner's condo with the marriage commissioner, his wife and his daughter, who had never met any of these people before. No family member was told. It just happened.

JW: Emily Clough is Little Donna's or Donna Devore-Thompson's lawyer.

EC: And then Floyd wanted to go and get some collateral evidence to support his version that he and Donna had been dating and were in love and now they were married. And just like every other married couple. So he went to the building manager and asked for him to support, to say don't you know we've been a couple forever. You see me always around here and we're a couple.

BRANDON SERBENIUK: And I never, I'm like I've never seen you before in my life. He's like oh I've been married to Donny. You must have seen me around and I'm like I've never seen you.

JW: Brandon Serbeniuk manages the condo complex where Donna used to live. It's for residents 55 and up.

DDT: He showed him an album, a photo album.

BS: A book of photos.

JL: Pictures of their wedding.

BS: With her and other people I'd never seen and you could see in the pictures there's no smiles. Just like a absolutely blank stare in her. You could tell she didn't know where she really was or who she was with or what she was doing and it was so obvious. But yeah he wanted me to call the bank and let them know that he was married and he lived here and he's been here for a while and I wouldn't do it.

JW: Roughly three months after the marriage, early on Saturday, September 11th, 2010, Big Donna was taken to the hospital after apparently falling in her condo. Floyd was there when it happened. He called the ambulance.

DDT: I didn't receive the call till the Monday.

JW: Little Donna rushed to the hospital and when she got there, she noticed her aunt didn't have anything from home. So she went to her place to pick up some things. It was while Little Donna was at the condo, that her sister Jill and brother Carey arrived at the hospital. Floyd was already there.

DDT: And they were standing outside and they heard him say.

JL: He said Donna is that your condo right now and she's trying to sell it and take your money. She started shaking, her eyes went really wide, as soon as he saw us, he backed out of that room so quickly.

JW: By the time Little Donna returned, Big Donna was still really upset. But among the items her niece had brought, was a photo album.

DDT: And we all sat down on the bed and we showed her pictures and she's like that's me? We're like yeah and who's that. I'm like that's me aunt, that's Little Donna. Little Donna? And she would touch my arm and you're Little Donna. It was very difficult.

JW: And then the family learned of a document that looked as though it had been signed by Donna Walker.

EC: Big Donna had apparently, during her lifetime, signed a power of attorney document, appointing Floyd as one of the people who would make her financial decisions on her behalf. She made that I believe just days before it ended up, that she ended up falling and going into care and being found that her mental capacity was very poor. Immediately there was a swirling of questions about that.

JW: Floyd stopped coming around to the hospital and it was later that month, that Donna Walker moved into a care home. Little Donna helped pack up her belongings and in doing so came across an old record.

DDT: And inside was this notebook, that had all these notes to my aunt and one of them was Donna, takeout, go down the bank and withdraw $40,000. It's really important.

JW: Donna Walker would die three years later on Boxing Day of 2013, when she was 74-years-old. Floyd, still on the books as her husband, named in a will the family believed to be questionable, stood to inherit much of her estate. The family decided to take Floyd Poulain to court. That decision began with a question.

DDT: Is this our fight or is this somebody else's fight? And we sat and thought, okay, let's make it our fight.

JW: That's when Little Donna hired Emily Clough, who would argue in the Supreme Court of British Columbia, that this had been a case of so-called predatory marriage.

EC: We brought a claim to the court to say that not only the marriage was invalid, but that the will was invalid.

JW: The will she's referring to was drawn up in 2009, before the marriage. Floyd had taken Big Donna to a lawyer, to help her make a new will. He had written instructions for changes in the margins of her old will, striking out the name of Donna Walker's executor, a close friend. Replacing it with his own. The family knew going in, getting the marriage set aside would be tough.

EC: It's very rare. Part of the reason for that is that the test for capacity to marry is so low. You need to know very few things. You just need to know that you're entering into a marriage with this person. And as long as you knew that, that's enough.

JW: The trial began in the fall of 2016.

EC: Floyd's evidence was that he never noticed a thing. He never noticed a time when anything seemed to be wrong with her mind.

JW: The judge in the case, Justice Susan Griffin, found the most likely reason for that was that Floyd was not telling the truth. And she called his attempts to access her bank account, a campaign. Justice Griffin also concluded Floyd had fabricated his evidence about moving in with Donna Walker. And the fact that Floyd had been at Big Donna's the morning she was taken to hospital, was not enough to suggest he lived there she said. Adding there could have been other reasons Floyd was there, including pursuing his efforts to have Donna Walker change her banking. For his part, Floyd testified that one family member was trying to steal their love potion and that he'd simply been trying to help Donna Walker access her own money. To overcome restrictions put on her account by her niece. The judge rejected his evidence, concluding he was a "dishonest witness." As for the authenticity of the document signed the day before Big Donna went into hospital, the judge described it as being at issue and found the circumstances around the 2009 will suspicious. The case wrapped up last summer. The judge set aside both the will and the marriage, concluding Donna Walker did not have the capacity to marry. Talking with Emily Clough, it's evident she admires Little Donna for the way she tried to protect her aunt.

EC: She just helped her in a way that is so rare, that I see somebody who has that compassion and that deep love. I still am emotional when I speak of it.

DDT: He took a big chunk of my life and made it very hard for me. I promised her. Made that promise to her and I feel very proud of what I've done and to help protect her and her dignity.

[phone dialling]

VOICE 1: It's been a few weeks now since I tried Floyd's brother so I ring again.

[phone hangs up]

JW: It's Joan Webber from CBC. I wasn't sure if this was an accident, but then Floyd's brother called me back, to see what I wanted. I said to give Floyd a chance to talk about his marriage to Donna Walker, but he said he didn't know why I was pursuing this. And the phone went dead again. I've tried other means to reach Floyd, but to date I've heard nothing back and it makes me wonder where he's gone to.

[Song: Mary Tyler Moore Theme]

AMT: When Donna Met Floyd tells the story of a woman named Donna Walker who is suffering from dementia, when a man named Floyd Poulain marries her without any of her family or friends knowing. Her niece, Donna Devore-Thompson, finds out after a call from a manager at her aunt's bank.

SOUNDCLIP

DDT: And said, I've got some news and you won't believe it.

JL: He'd come in saying that they were married.

DDT: I was really upset.

JL: Oh my God. We were.

DDT: I think I'm going to cry now. Sorry. It's so awful to think about it.

AMT: After her aunt's death, her niece known as Little Donna, took Floyd to court in an effort to have the marriage set aside. In a rare decision, the judge found that indeed her aunt, Big Donna, had not had the capacity to marry. To discuss some of the bigger issues around this case, I'm joined by Vancouver lawyer, Emily Clough. She was Little Donna's lawyer in this case. She's in Victoria today. I'm also joined by Toronto lawyer, Kimberly Whaley. She's the author of a book called, Capacity to Marry and the Estate Plan. Hello to you both.

KIMBERLY WHALEY: Hello.

EC: Hi Anna Maria. Hi Kim.

KW: Hi Emily.

AMT: Emily Clough, let's start with you. As we heard you say in Joan's documentary, it is rare to get a marriage set aside. What made this case unique?

EC: There was a couple of aspects that made it unique. A big part of it was the drive and passion that Donna Walker's family had to write what they saw as an injustice. As, we as lawyers, very often see that the whole process of going to court, hiring a lawyer, it's expensive, it's extremely stressful and for a lot of people their loved one has already passed away and they just can't face the years and the expense of moving forward. In this case, the bond between Little Donna and Big Donna was one of those heartwarming bonds that really makes our society something special.

AMT: And give us a wider perspective Emily Clough, why is this win significant?

EC: We very rarely see cases in Canada, where we see the challenge to a marriage. To the fundamental validity of that marriage to say that marriage is invalid and part of that is because at law, right now, our test of marriage is so low, it really takes very little capacity in order to have the capacity to get married. And so for cases like Big Donna, she was able to go to a marriage commissioner with Floyd and they in fact got married, despite that she was barely cognizant of what was going on in her life, due to her own declining mental capacity

AMT: Kimberly Whaley, you among others have called this decision unique. What is it about this case?

KW: I think this decision, as well as a couple of others in this past year. So Hunt and Worrod in 2017 and Chuvalo and Chuvalo in 2018 are unique insignificant in fact that they have, I hope moved the law along. To move away from the old historical adage where marriage was a simple test, not requiring a high degree of intelligence. They are unique in that the court had the tools to be able to set aside the marriage, based on the medical evidence available and often that isn't the case. We don't see the available medical evidence because during the person's lifetime, the person who's been preyed upon, has been sequestered or alienated, isolated and not gone to the doctor. But in these three cases in particular, the court has had the luxury, shall we say, of having the tools through the medical evidence to set aside these marriages and not to have to rely on that old historical adage of marriage as a simple test, by applying the factors that the common law have set out previously.

AMT: Emily Clough not everyone has a Little Donna in their lives or the supports that Donna Walker had. How vulnerable are older Canadians at this point in time?

EC: I think it's one of the more significant risks that people are facing. It's so easy to get marrie. It's kind of a funny thing to say because many people who get married, it's a long thoughtful process, but as a matter of fact, you can get married, quite easily, quite quickly and through not much of an expense. And there's many Canadians out there who are vulnerable. They don't have many other people around them and they can be found and they can be preyed upon.

AMT: And Kimberly, you've written a lot about this topic. How do you define a predatory marriage?

KW: I like to define it is where an unscrupulous opportunist preys upon an older adult, a diminished capacity or diminished reasoning, for the sole purpose of financial exploitation. Many years ago I wrote a book called, Capacity to Marry and the Estate Plan, and we coined that phrase in it.

AMT: So is there anyone keeping statistics on this or is it really too hard to actually pinpoint?

KW: I think it's too hard to pinpoint. There aren't really stats on it to know. But it is increasing like financial exploitation is generally increasing and I think that's because we have longevity. People are living longer, they're vulnerable, dependent and they're available to be preyed upon.

AMT: Well I want to hear some other examples of predatory marriages, which stand out for each of you. Kimberly you mentioned a few, just by the names, can you give us some examples of what else you've seen?

KW: Sure. So our office was involved in a case last year that went to trial and we won. In this case where Mr. Hunt was taken advantage of by Ms. Worrod. Mr Hunt had suffered an ATV accident and was catastrophically brain injured. He was 50-years-old and he was preyed upon by an ex-girlfriend, who when he was released from hospital after five months, three days later she kidnapped him. And she took him and she married him. And when his sons found him through a credit card trail, he had already married. And of course the family were devastated and they embarked upon litigation to try and set aside the marriage and they were successful in doing that. And the court, Justice Koch, opined that the marriage should be void ab initio and did go into some of the prior case law, including Devore that came out just before it. But really relied on the medical evidence, which was significant of Mr. Hunt's cognitive impairment.

AMT: And this is a case where he's not "elderly," right? So it is really about cognitive impairment as well, that can happen. It's not necessarily solely age that makes someone vulnerable.

KW: Correct. It is unique in that he wasn't aged, shall we say. This can happen where women are preyed upon, where men are preyed upon and the cognitive impairment is paramount in the situation.

AMT: Emily do you have other examples?

EC: We we do see it out here in particular with the financial abuse that we see with older people, with vulnerable people and we certainly saw it in Big Donna's case. I'll just use that example where she would go to the bank and then Floyd would go with her to the bank and she would start taking out cash and lots of cash and that amount of cash she was withdrawing over time increased and she couldn't explain where it was going. And I see it in a lot of the other cases that I do is it starts with the bank and the taking out of cash and you can see it sort of ramping up with people becoming involved, more and more involved in the vulnerable person's life.

AMT: Kimberly there was a case Banton versus Banton. And I understand that had an interesting twist to it as well. What happened?

KW: Banton and Banton is from a few years ago now. George Banton, he was about 84, he was in a retirement residence and he was preyed upon by the 31-year-old, Muna, who was a waitress in the firm's, in the retirement home. And she took him out for the day. She married him. He was returned to the home. He was castrated. He had prostate cancer. He was very frail and vulnerable and she took him the next day after the marriage to have a new will done and to have powers of attorney done in her favour. A few years later, George Banton died and his children moved to set aside the marriage, to set aside the wills and the powers of attorney. Justice Cullity who is now retired, presided over the hearing and he found that George Banton, he didn't have the requisite testamentary capacity to do a will, to do the powers of attorney, that he had been unduly influenced by Muna, but could not go so far as to set aside the marriage. I think the problem was there was no expert evidence before the court, upon which Justice Cullity could find the marriage to be void of an issue. Justice Cullity did say that the appropriate factors to be applied ought to be the ability for a person to manage their property in personal care, but unfortunately the law wasn't there yet. And so I think the court was restrained from being able to make a decision that wasn't unappealable or unassailable.

AMT: And so how did that affect the children who were obviously in the first will?

KW: Right. So the marriage wasn't set aside, so the state passed on and intestacy and in Ontario at the time the preferential share was $200,000. So Muna received the first $200,000 of George Banton's estate and one third of the residue.

AMT: We should talk about that because the laws vary from province to province and when, even if you have a will in Ontario and a few other provinces, am I right, the marriage can override portions of the will?

KW: Yes. So marriage revokes a will in Ontario and many people don't know that. And if you don't have the requisite capacity to know that or to do a new will, then it creates a big problem. In Alberta, they changed that law. They had a similar law. They changed that in 2012 and in B.C. they changed it in 2014. Quebec for instance, never had that law, but it ought to be repealed, but it doesn't end the whole problem. There can still be people who are preying upon an older adult, even through a common law relationship, where they receive benefits from that relationship.

AMT: How tough is it for a judge to weigh whether someone has the capacity to marry?

KW: It's difficult because there's a presumption at law of capacity and so only through a declaration of incapacity can a court opine that a marriage is void or void ab initio from the get go.

AMT: Emily how do you balance some vulnerable adults independence, their right to enter into what family members might not agree to with the desire to protect the person?

EC: That's the most difficult part of it is and that's what our law needs to do and develop some type of a nuanced way of balancing that right. That independence, our charter freedoms of autonomy and independence versus wanting to protect vulnerable people. We don't want to take away the rights of people to like who they like and get married to whoever they want, however we've got to find that balance to protect people.

AMT: And I guess it's hard too because on the surface we often hear of these cases where they do, they might isolate the parent against the children and then it looks like a fight with the kids. And it's hard, it might be hard to judge.

KW: Sure. Interestingly, in the Devore case, that was case where the case was taken to court after the death of Donna. In our case, in the Hunt and Worrod case, Kim Hunt is alive. Brain injured, but well. And it was unique that the marriage would have been set aside while he was alive and not only that, the court had to opine as to whether or not the predatory spouse could have any contact with Mr. Hunt go forward. And that autonomy, the balance of the autonomy and the rights of the person, was really highly evaluated by the judge in that instance. When he decided that in fact there should be no relationship go forward as between Kim Hunt and Ms. Worrod.

AMT: And Kimberly, you mentioned Chuvalo versus Chuvalo.

KW: Yeah that was the case in 2018, Justice Keightley and it was the first case that our courts have seen in Ontario on the capacity to reconcile. So George Chuvalo and his wife, it was a second marriage I think.

AMT: And this is the famous George Chuvalo.

KW: The boxer. Yeah. The Muhammad Ali boxer. So George Chuvalo had separated, as I understand it for some time, and the question before the court was could he reconcile. So the two sons I believe brought the case forward to court saying they wanted a divorce because he had formed the requisite intention to divorce, to divorce previously. And the court decided that he did not have the capacity to reconcile, more or less on the same factors that a court would look at when evaluating the capacity to marry. Because property rights attach to a reconciliation, so a continuance of marriage, the court found Justice Keightley found that George Chuvalo didn't have the requisite capacity to reconcile. That he didn't understand what his property was. He couldn't manage his property and he couldn't manage this person. And that was consistent again with a very unique expert evidence that was before the court from the time period both before and after when George was assessed by the expert witness.

AMT: So we're looking again at another case where the families have brought it forward, but what do you think needs to happen to better protect older vulnerable Canadians?

KW: Our office has the good fortune of having Professor Mr. Oosterhoff with us as counsel. And we have developed a predatory marriage legislation, shall we say, that we've been trying to put forward to policymakers to try and get through some sort of legislation that assists in being able to set aside these marriages in predatory circumstances. I don't, it's difficult because the public policy concerns are to protect marriage and to protect the rights of the person. We've looked at many other sort of equitable remedies as a way of getting around the legislation. For example, looking at things like undue influence unconscionability, the lack of independent legal advice, fraud, civil fraud, the tort of deceit. Other tools that are currently used to be able to set aside these marriages, where there isn't the overwhelming medical evidence like there is in Chuvalo or Devore or in Hunt-Worrod. But there needs to be some sort of legislation. First start, Ontario could revoke the legislation that marriage revokes a will. It's not going to eliminate the problem and I think our marriages act could be tightened. So we have Section 7 of the marriages act here that says that you can't convene a marriage if a person is incapable. In B.C. it goes further and says that it's a crime, it's a criminal offense to convene a marriage where a person doesn't have the capacity. I think we could do a lot better.

AMT: Emily, what do you think?

EC: Yeah, I agree with Kim's perspective on this. From what I have seen, out here in B.C., you have to get married in person. There has to be a marriage commissioner there who performs the marriage to these two people in person. So that marriage commissioner has that opportunity. And my own view is that there could be something built right in to that mechanism that we already have in place, which wouldn't be a huge burden. It may not be very expensive and it may not overburden the participants as well.

AMT: Are you saying that some of these marriages happen with one party not even present?

EC: Oh no the opposite. Both parties have to be present. So since they're already present, it could become part of the function of that marriage commissioner to do some analysis, do some investigation, do something regarding capacity.

AMT: OK. So go ahead.

KW: In a way you could say that a person wasn't there. I've cross examined where a person who was married at a hospital and on a morphine drip and in a coma and the marriage was convened. So.

AMT: So that's how easy it is to get around some of this stuff right. So what would you each advise people to do to protect themselves?

KW: It's so difficult. People do come to my office and say there is a predator out there of sorts. We think that this person is intent on marrying our parent. How do we avoid it? And the reality is you can't, at least in Ontario there's nothing that you can do to stop that marriage. There is no caveat like there is B.C. for example, you can register a caveat. In Manitoba, they have some similar legislation, so unfortunately you can't prevent it and know that in the background, this predator is working meticulously, trying to unduly influence the person. So that it makes it very difficult for the family to intervene.

AMT: Is there a risk Emily that that making it more difficult for a vulnerable person to marry actually plays into the hands of a greedy family?

EC: Those are the balancing factors. And that's what we've seen in most of these cases, the allegation of the person who did successfully get married to the vulnerable person is something along the lines of well that family is trying to get between us. They don't appreciate our love. They don't see what we see each other and the deep bond that we have. And there's inevitably that allegation that it's just some nayer do well family, that they are the ones in fact who are waiting around just wanting to benefit from the money of their parent often. And that is in some cases that may be the tension that we're balancing between some family members who maybe are trying to inherit and somebody who indeed is wanting to validly marry somebody who also has the capacity to marry.

AMT: And of course that was the accusation of in the case of Donna Walker, right? But it didn't work.

EC: That was absolutely it.

AMT: They were able to prove that that was not their interest.

EC: Yeah. Well Floyd was talking about the love potion between him and Big Donna and it just didn't, it just didn't pass any muster. It didn't make any sense compared to all of the other evidence.

AMT: OK I guess a support system is the most important thing then so that you're aware of what's happening to another member of your family or someone who's very vulnerable, who's part of your friendship or your family group. You need to be there to support them.

KW: That's right, but if you look at the broader picture and where these allegations come in, it's often a family member who's preying upon an older adult. So from the perspective of financial abuse, we often see an adult child who has abused a parent. So when you look at financial institutions like Emily said, it often comes from the financial institution. So support systems, yes often. Some of these situations are identified through neighbours, but everybody should be vigilant to the elder abuse that is going on in our society.

AMT: It's important to hear what you both have to say. Thank you.

KW: Thank you very much Anna Maria and thank you for the opportunity to speak about this very important area.

EC: Thanks Anna Maria.

AMT: I'm Anna Maria Tremonti. Thanks for listening to The Current.

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Wednesday December 19, 2018 Full Transcript

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