Murdered billionaire Barry Sherman’s outspoken cousin will be assessed to determine if he has a mental “disability” that would prevent him from representing himself in his appeal for one-fifth of the Apotex founder’s riches.

Kerry Winter — who earlier this year made the shocking allegation that Sherman twice asked him in the 1990s to kill his wife, Honey — may require a “litigation guardian” to oversee his part of the case. But two affidavits that would shed light on comments about Winter’s mental state are sealed from public view. The Sherman family’s lawyer wants them unsealed.

The affidavits were prepared by Julia Winter, Kerry’s sister-in-law, who lives in Western Canada and is the widow of Sherman cousin Dana Winter. Julia, Kerry and two other cousins of Barry Sherman, Jeffrey and Paul Barkin, have for years been involved in litigation over the billionaire’s company — a case now before the Ontario Court of Appeal and Justice Katherine van Rensburg.

“Kerry Winter is unable to self-represent or instruct counsel, appreciate the reasonably foreseeable consequences of his decisions and the issues which are relevant to this proceeding and is at serious risk of relapse because of his mental disability which has been exacerbated as a result of this proceeding,” according to documents filed in court by Paul, Julia and their lawyer Brad Teplitsky. Julia’s two affidavits, prepared recently, are referenced in the documents but remain under seal.

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Kerry Winter has told the Star he is competent to represent himself, but is happy to be “assessed.” In interviews with the Star, Winter has made numerous allegations, including saying there is a coverup in the case and that, despite the police stating the Shermans were murdered, it was actually a murder-suicide. Winter has been interviewed by a Toronto police homicide detective and by a private detective working for the Sherman family.

On Thursday, a judge will hear arguments on whether the affidavits describing Winter’s behaviour should remain sealed and there will likely be discussions in court about the next step for the cousins’ case.

Barry and Honey Sherman were murdered in December in what police have called a “targeted” killing. Homicide detectives continue to probe the case, which was originally investigated as a murder-suicide until a second-look series of autopsies was conducted by a veteran pathologist hired by the Sherman family.

In the months before the couple’s deaths, a decades-long battle between Barry Sherman and his four cousins had resulted in a decision by a judge that there was no merit to the cousins’ claim that Sherman owed them roughly one-fifth of his almost $5-billion fortune. Sherman founded and ran Apotex, Canada’s generic pharmaceutical giant.

Ontario Superior Court Justice Kenneth Hood, in his September 2017 ruling, called it “wishful thinking” that the cousins were owed money by Sherman, who had bankrolled the cousins’ various business activities with millions of dollars for many years.

After the ruling, and shortly before the couple’s deaths, the judge awarded $300,000 in legal costs to Sherman. He had asked for $1 million. The cousins, led by Kerry Winter, appealed but that case has been mired for months in a back-and-forth discussion on how to proceed. The legal cost payments are on hold pending the appeal. Sherman’s lawyers have also appealed, stating costs close to $1 million should have been awarded to Sherman’s family.

The tumultuous case traces back to the 1960s and a drug company called Empire Laboratories, where Barry Sherman worked as a young man. Empire was owned by Sherman’s uncle Louis Winter. The cousins involved in the current case are Winter’s children, who were young when their parents died.

Barry Sherman bought Empire after his uncle’s death. The cousins allege that when Barry Sherman sold Empire and founded Apotex, he had a fiduciary duty to the cousins that amounted to one-fifth of its net worth.

Now the case has gone to the Ontario Court of Appeal.

The four cousins appealing are Kerry Winter, Jeffrey Barkin, Paul Barkin and Julia Winter (widow of the late Dana Winter). Two of the siblings took the last name Barkin, the surname of the family who adopted them.

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Jeffrey has always represented himself and is no longer involved in the case. Until recently, Kerry, Paul and Julia have been represented by Toronto lawyer Brad Teplitsky. After Kerry made a series of statements to the Star and other media in January, describing two requests from Barry in the 1990s (which he said he never reported to police at the time), asking him to kill Honey, the relationship between Kerry and his lawyer became strained. In one statement to CBC’s Fifth Estate, Kerry Winter said that in the past he told his psychiatrist he’d fantasized about decapitating Barry and wanting “to roll his head down the parking lot” at Apotex.

The Sherman family and friends have said Winter’s claims about Barry asking Kerry to kill Honey are “outrageous and baseless.”

One of the issues between lawyer Teplitsky and Kerry Winter relates to how they individually see the case proceeding.

According to a document Teplitsky has filed with court, he has received “conflicting instructions” from Paul and Julia on one hand, and Kerry on the other.

Teplitsky said the Law Society of Upper Canada suggested he bring a motion before court to appoint a litigation guardian, something done in cases where “unsoundness of mind” is determined, according to Teplitsky’s documents. Teplitsky wants to be removed as Kerry’s lawyer, the documents state.

Winter is opposing the appointment of a litigation guardian (a lawyer provided by the province at provincial expense) and has told the Star he is competent to represent himself.

What is in the two affidavits his sister-in-law has filed is a mystery, and the Winter/Barkin parties want to keep it that way.

“Parties should be encouraged to bring forward mental health difficulties without concern that they will be broadcast in the media or by people who might seek to take advantage of that information,” Teplitsky’s documents state.

On Sherman’s side, lawyer Katherine Kay states in documents filed with court that the “open court” principle should apply and the affidavits should be public. She points to numerous delays in the Barkin/Winter group filing court documents on time, and notes that in 2017 some of them asked for a litigation guardian to be appointed for cousin Jeffrey Barkin.

In a portion of the Julia Winter affidavit referenced in the documents, Julia states that in 2017 it was “clear to everyone that (Jeffrey Barkin) was under mental disability.” That attempt to appoint a guardian for Jeffrey was abandoned after he produced a psychiatrist’s note stating he had “no capacity issues.”

Jeffrey Barkin told the Star recently that he has no interest in the ongoing dispute. “(Barry and Honey) did so much for the community, and I do not wish to diminish this,” he said.

Kevin Donovan can be reached at 416-312-3503 or kdonovan@thestar.ca.

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