Wills, Estates, Trusts Law - OCJ

The accused pleaded guilty to theft over $5,000 committed between May 2, 2012 and March 1, 2016.

As Power of Attorney for her mother's personal care and property, the accused depleted her mother's bank accounts and investments by approximately $161,000, spending the money on gambling, living expenses, and overseas travel.

The court rejected a conditional sentence and imposed six months imprisonment followed by three years probation with conditions prohibiting the accused from holding positions of trust and requiring counselling.

A stand-alone restitution order of $161,000 was made in favour of the estate.

A mother sought to garnish a discretionary trust (Henson trust) established for the benefit of the father of her child to enforce unpaid child support arrears exceeding $40,000.

The garnishees, who were the trustees and also the father's siblings, successfully defended the garnishment application on the basis that the discretionary nature of the trust placed all distribution decisions within the trustees' sole discretion, making the trust immune from garnishment.

The trial judge dismissed the mother's application.

This decision addresses the costs consequences of that dismissal, with the court declining to award costs to the successful garnishees despite the presumption in their favour.

A mother sought to garnish a discretionary trust established for the benefit of a non-paying support payor to enforce unpaid child support arrears exceeding $40,000.

The trust, known as a "Henson trust," was created by the payor's mother and placed full discretion over distributions in the hands of the payor's siblings as trustees.

The court held that the trust could not be garnished because the payor held no beneficial interest in the trust funds and the trustees owed no debt to the payor.

The court dismissed the garnishment notices, finding that discretionary trusts remain immune from garnishment for child support enforcement purposes.

The defendant was charged with theft over $5,000, fraud over $5,000, and criminal breach of trust arising from her misappropriation of $4,000 belonging to her elderly father, for whom she held a Power of Attorney.

She was found guilty of theft under $5,000, fraud under $5,000, and criminal breach of trust.

The Crown sought a conditional sentence of six months, while defence counsel sought a conditional discharge.

The court imposed a suspended sentence with 18 months probation, finding that neither a conditional discharge nor a conditional sentence was appropriate given the aggravating factor of breach of fiduciary duty, the defendant's lack of remorse, and the principles of sentencing under the Criminal Code.

The accused was charged with theft over $5,000, fraud over $5,000, and criminal breach of trust arising from her use of her father's funds while holding a power of attorney.

The accused used $4,000 of her father's money to pay personal bills while he was in long-term care, causing him to default on facility payments.

The accused claimed colour of right based on a clause in the power of attorney authorizing loans to relatives and her father's prior loans to her.

The court found that the circumstances were materially different from prior loans, as the father was now in care, the funds were insufficient to cover his care costs, and his default on obligations created risk.

The court rejected the colour of right defence and found the accused guilty of theft under $5,000, fraud under $5,000, and criminal breach of trust.