Blind justice for Kim

Wednesday, March 29, 2006

Long fight ends with rightful trust fund money

By Suzanne Bourret
The Hamilton Spectator (Dec 23, 2005)

When Kim Winfield remembers the stereo system he bought seven years ago, it's like a sunrise flits across his face. His big, brown eyes glitter at the memory.

It was three days before Christmas when he picked out his dream sound system with the help of Hamilton lawyer Adam Cappelli and the late George DeSantis, who worked at East Hamilton Radio.

George, known as a man with the heart of a saint, assembled it on Christmas Eve in Kim's west-end apartment. Afterwards, the two celebrated with a few drinks.

"It was a Christmas present that sounded like the grace of God. I think they could hear me on Mars," says Kim, with a laugh.

The purchase had a lot of meaning. The stereo was bought with money recovered through a long, intense battle to end a relative's misuse of Kim's trust fund. Adam Cappelli led that battle through his belief in Kim's story.

That story begins in August 1967, when Kim is seven years old.

He and his father, John, were on a fishing trip in New Hampshire. The father and son spent a lot of time together fishing, camping and often sailing on the Gatineau River, near their home by Hull, Que.

"I remember waking up that day and it was sunny. Dad and I had a tent on some riverbank. There was a shack that was an outhouse."

The rest of the day is a blank.

John was driving with Kim on the New Hampshire highway. A drunken American marine struck their open roadster.

"I was thrown out of the car," says Kim. "The last thing I remember seeing was a big, black rock with brown markings on it. When I woke up in a New Hampshire hospital, I was covered in a body cast."

His mother, Theresa, rushed to his side. When she remarked that he didn't seem happy with the dinky toy she gave him, he said, "Because mommy, I can't see it."

Kim suffered severe head and body injuries. He was totally blind. And he was fatherless.

He was flown to a hospital in Wakefield, Que., just before Christmas and came home the following March. That summer, he had surgery to insert metal plates to replace bone loss in his head. Theresa was left to care for him and his younger brother, Rory.

"I remember my eighth birthday because all the neighbourhood kids came, I guess it was to check out the blind boy."

Kim's father had been a research technician who worked at the National Research Council in Ottawa, then became a buyer for defence equipment. Kim's mother met his dad in England when she came from India to study nursing. They immigrated to Canada in 1957.

After the accident, Kim and his best friend, Derek Van Wick, still roamed around the old trails and roads in the Gatineau Hills near their homes. Before the accident, they used to steal eggs from a farmer.

"He got our butts, we were nailed by him at least once a week. Derek and I built small campfires and fried the eggs on a metal sheet over the fire. You know, even blind, I can still walk all that area, I've never forgotten."

When Kim recovered, he was sent to a Montreal boarding school operated by the Montreal Association for the Blind. He stayed until 1974.

"It was a fantastic boarding school. They had wonderful books and the teachers were fantastic," he recalls today, dragging on another of what would be many cigarettes. He made friends and loved playing baseball and soccer. They used a ball with a bell in it and ran after the sound. Kim laughs when he remembers how it went through a nearby police station window quite a few times.

After Grade 7, he went to junior high at Montreal West High School. It was a sighted school and it didn't work for him. "I bombed out, I couldn't take the classes. There were just too many kids (40 to a classroom) and it was just too bloody confusing."

He was 14 when he was transferred to Brantford to the W. Ross Macdonald School. "I love books and it had a fantastic Braille library."

But a year later, Kim says he was expelled for creating trouble. He was sent to the Royal Ottawa Psychiatric Hospital for assessment where he stayed for almost a year. While there, he went to a Canadian National Institute for the Blind school in Ottawa, where the classes were small. His next stop was a school in Toronto for adjustment to blindness.

"It was just idiotic. I had been blind for 11 years and they were teaching (us) how to tie our shoes and how to make sandwiches. I'd learned that as a kid."

Kim was 18 when he was transferred to the Hamilton CNIB.

"I was supposed to come for a month to do piecework (putting washers on bolts), but I've been here (in Hamilton) ever since."

Through all of these years, there was an issue of money. A year after the accident, Kim's mother sued a New Hampshire insurance company and appointed her late husband's brother, Ken Winfield, to negotiate the settlement. She was named guardian and her brother-in-law was named alternate guardian. The final settlement was $47,500 US. Kim was allocated $27,143 US, and the remainder went to his mother for the care of Rory.

Kim's share was held in trust. When Kim was 18 he gave his uncle power of attorney to continue to manage his trust money. But when Kim asked his uncle for money, he was repeatedly told there was none left, says Adam, who conducted the investigation.

Winfield was to later tell Adam there was no trust money left because over the years he had given money to Kim or paid his bills.

Kim retained three Hamilton lawyers to help him recover his money with no results because his uncle denied the trust funds even existed.

Then one day in early spring of 1996, Kim turned up ranting about injustice in the lobby of Ross & McBride where Adam Cappelli had just started work as an estate lawyer. Adam, a kind and caring young man, listened to Kim and invited him into his office. Adam was intrigued by what he heard.

"Kim had no money to pay a retainer, but who could refuse a client in his circumstances?" Adam has a special compassion for the disabled because both his brother and brother-in-law live with disabilities.

Kim had found a new friend, and he showed up every day at Ross & McBride until Adam offered to buy him a phone.

When Adam asked Ken Winfield, who lived in New Brunswick, to provide Kim with a detailed accounting of his trust money, Winfield didn't respond. Kim asked Adam to sue his uncle. It was Aug. 6, 1996, just two weeks short of the 29th anniversary of the accident.

On Feb. 27, 1997, the Ontario Court (then known as General Division) ordered that Winfield must return the trust money, the final figure based on investing the funds, interest and legal costs. In the end, Kim received less than $100,000.

But the money would take some time to come as the Ontario judgment had to be applied and enforced in New Brunswick. The whole process would eventually involve a private investigator, information from the uncle's former wives and seizures of assets.

On Dec. 14, 1998, Kim got his first payment.

The uncle died about three months later after suffering a stroke. He was in prison for contempt after not attending a debtor examination. Proceeds from Winfield's small life insurance policy and a small company bank account were paid to Ross & McBride in trust for Kim.

Kim's recovered money is now invested with a bank. His mother, as power of attorney, manages and controls it for his benefit. Recently, two more assets were recovered. There could be more, says Adam.

What kind of person would refuse to give his blind and disabled nephew assets from his trust fund?

Theresa says he was a fiscal predator. "I knew Ken was a calculating person, but I didn't know he was dishonest," she says in a telephone interview from her home in Chelsea, Que.

Theresa points to an early incident that indicated trouble. After Kim's accident, the community held a fundraiser that collected $200. His uncle suggested he could invest the money, and when Theresa declined, he suggested the money be put into bonds. Winfield then found a way to get the bonds transferred to his own bank.

"When the community found out, they demanded the return of the bonds," Theresa says.

Winfield complied.

Says Kim: "He was a con man and basically a thief. Whenever I tried to call him him, he'd tell me he couldn't hear me, that there was a bad connection. I hate what he did to me. I think he used my money to buy his properties. I can forgive him, but I can't forget what he did to me."

Adam learned much from one of his first cases. "I think there are a lot of people who appoint relatives to a position of trust without careful forethought and realizing how common it is for the misuse of money."

He says the case also taught him an important lesson early on in his legal career. "That is how important it is to listen to a client's story, particularly where there has been a head injury. No matter how crazy their story may sound, you have to presume they are being truthful."

As for that dream stereo that Adam helped Kim buy, Kim enjoyed it -- until last year. Sometimes in his wanderings he meets people who take advantage of his disability. The woman he invited to his apartment for coffee was one of them. She made a phone call, two men came to the door, she let them in and they got away with everything except the speakers.

Kim says he doesn't have that much faith in people anymore, but he isn't remorseful about the incident.

"What's going to happen happens. It's life. I've learned so much by being blind. I've learned how to listen to people."

One of those people is Adam, whom Kim now counts as a good friend.

"He's a good guy. Whenever I have a problem he helps me."

Adam and Kim are making one more trip to East Hamilton Radio to replace that beloved stereo. This time it will include a security system. And Kim will soon hear again the music that is like the grace of God.