Court File and Parties

COURT FILE NO.: CV-22-00971 DATE: 2023/02/21

SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE ESTATE OF MARY POWERS, DECEASED

RE: SANDRA VAN RUYMBEKE, Executor and Trustee of the Estate of MARY POWERS, Deceased, Applicant

AND:

CONNIE VAN RUYMBEKE, Executor and Trustee of the Estate of MARK MARSHALL PETER VAN RUYMBEKE, Deceased and SUSAN SALENBIEN, Respondents

BEFORE: Justice I.F. Leach

COUNSEL: Eric M. Katzman, for the Applicant David G. Waites, for the Respondent Connie Van Ruymbeke, Executor and Trustee of the Estate of Mark Marshall Peter Van Ruymbeke Kenneth W.J. Rhodes, for the Respondent Susan Salenbien [1]

HEARD: January 24, 2023

Endorsement

Endorsement

1The applicant in this estate litigation, (a daughter of the deceased Mary Powers, and her estate trustee), has brought an application seeking various forms of substantive relief, including:

a. an order recognizing the applicant’s standing and/or granting the applicant leave to bring an application for an order compelling a passing of accounts by each of the two named respondents, (two of the applicant’s three surviving siblings), in relation to actions said to have been taken pursuant to a continuing power of attorney for property, (executed by the deceased), over the final years of the deceased’s life;

b. an order compelling those two named respondents to pass accounts accordingly;

c. an order compelling the applicant herself to transfer certain farm properties, (currently still being held by the applicant as estate trustee of her deceased mother’s estate), to one of the named respondents, (Connie Van Ruymbeke), in the latter’s capacity as an estate trustee during litigation in relation the estate of another sibling, (Mark Van Ruymbeke), who died after the parties’ mother but before commencement of this proceeding; and

d. in the alternative, the advice and direction of the court in relation to issues raised by the application.

2For the reasons outlined herein, I have granted some of the relief sought by the application while directing a trial of an issue raised by the application, with the balance of the application adjourned to be disposed of by the trial judge, pursuant to Rule 38.10(3) of the Rules of Civil Procedure.

Further Background

Further Background

3I will have more to say about particular undisputed and disputed facts later in these reasons. However, by way of further initial background:

a. The litigation herein involves and affects members of the same extended family. In that regard:

i. The deceased, Mary Powers, was a widow who died on September 6, 2019. She was survived by her five adult children: Sandra Van Ruymbeke (the applicant), Carol Van Ruymbeke, Connie Van Ruymbeke (the first of the two named respondents), Mark Van Ruymbeke and Susan Salenbien (the second of the two named respondents). [2]

ii. In her apparently undisputed last will and testament, (executed on June 11, 2010), Mary appointed her children Sandra, Susan and Mark to be the executors and trustees of her estate. [3] However:

1. Mark died on April 13, 2020, prior to the issuance of a Certificate of Appointment of Estate Trustee With a Will in relation to his mother Mary’s estate, and leaving two adult children: Aimee Henry and Scott Van Ruymbeke. As noted above, Mark’s death has given rise to separate estate litigation; e.g., with Aimee and Scott apparently seeking to set aside their father’s putative last will and testament. In separate proceedings, Connie has been formally appointed as Estate Trustee During Litigation in relation to her brother Mark’s estate, pursuant to an Order made by Justice Carey on January 12, 2021.

2. On July 31, 2020, and prior to the issuance of a Certificate of Appointment of Estate Trustee With a Will in relation to her mother Mary’s estate, Susan formally renounced her right to seek such an appointment.

iii. In the result, Sandra alone has been formally appointed as her mother Mary’s executor and estate trustee.

b. At the time of her death, Mary’s assets included two farm properties, both of which apparently are located within the county of Chatham-Kent; i.e., a farm located on Kent Bridge Road in or near the village of Kent Bridge (“the Kent Bridge Farm”), which previously had belonged to Mary’s second husband (and stepfather to Mary’s children) before passing to Mary, and a farm located on Mason Line in or near the village of Thamesville (“the Mason Line Farm”), which previously had been owned by Mark before he transferred the property to his mother. The full legal descriptions of both properties are included in the material filed with the court, but I will refer to them hereafter for the sake of simplicity as “the Kent Bridge Farm” and “the Mason Line Farm”, or to both properties collectively as “the farm properties”. [4] In that regard:

i. The farm properties apparently have a combined acreage of approximately 117-120 acres. [5]

ii. There are indications that, in the past, one or both of the farm properties have been leased in whole or in part, (e.g., for the purpose of farming crops such as corn and soybeans), to persons other than members of Mary’s immediate family. [6]

iii. In her apparently undisputed last will and testament, Mary left the farm properties to her son Mark, who survived his mother, as noted above. The remainder of Mary’s estate was to be divided equally between Sandra, Carol, Connie and Susan.

iv. Although he survived his mother Mary, Mark died before ownership of the farm properties could be transferred into his name.

v. In her capacity as her mother Mary’s executor and trustee, charged with administration of Mary’s estate, Sandra wishes to formally transfer the farm properties to the appropriate legal representative of Mark’s estate.

vi. In her capacity as Estate Trustee During Litigation for her brother Mark’s estate, Connie is willing to accept, in that capacity, such a transfer of the farm properties.

vii. In their capacity as parties interested in their father’s estate, Aimee and Scott are not opposed to the farm properties being transferred from Mary’s estate representative to Mark’s estate representative, provided it is made clear that such a transfer effectively is without prejudice to the rights or potential rights Aimee and Scott are asserting in the litigation concerning their father’s estate.

viii. For reasons related to the litigation surrounding Mark’s estate, (including the formal challenge to Mark’s putative last will and testament, the fact that Sandra is not a party to that litigation, Sandra’s perception that Connie’s authority to act as an Estate Trustee During Litigation in relation to Mark’s estate was confirmed but limited by an Order made by Justice Carey without specific consideration of Mark’s estate receiving a transfer of the farm properties from his mother’s estate, and a formal “Caution” registered against the farm properties by Aimee), Sandra desires the comfort of a formal Order directing her to make such a transfer of the farm properties.

c. At or about the same time as she executed her last will and testament on June 11, 2010, Mary executed two other legal documents; i.e., a Power of Attorney for Personal Care, and a Continuing Power of Attorney for Property, both of which clearly were intended to confer or grant power of attorney authority pursuant to the terms set out therein. The application material includes copies of those two power of attorney documents executed by Mary, and I will not replicate the terms of either document in their entirety here. For now, I note that the first numbered paragraph of the relevant Continuing Power of Attorney for Property reads as follows:

“I APPOINT my daughter SUSAN SALENBIEN or my son-in-law DAVID SALENBIEN [7] or my son MARK VANRUYMBEKE [sic] to be my attorney(s) for property, and I authorize my attorney(s) to do, on my behalf, any and all acts, which I could do if capable, except make a will, subject to any conditions and restrictions contained therein.

d. It seems undisputed that, following a heart attack experienced by Mary sometime in 2012, Mary was hospitalized for a time, was thereafter unable to continue living safely on her own, and therefore necessarily moved into a long-term care facility, (“Riverview Gardens”), located in the city of Chatham, Ontario, where she lived for the remainder of her life. [8]

e. It also seems undisputed that, following Mary’s hospitalization, Susan began acting as the grantee of a power of attorney for property in relation to her mother Mary’s affairs, and continued doing so up until the time of Mary’s death. Without limiting the generality of the foregoing, it apparently is not disputed that, acting pursuant to the Continuing Power of Attorney for Property noted above, Susan carried out various tasks on her mother Mary’s behalf. Those tasks apparently included such matters as:

i. managing rental income generated by the King’s Bridge Farm that seems to have come from a source other than Mark, at least up until some point in 2012; [9]

ii. being in charge of paying bills relating to the farm properties, except for the payment of farm insurance for 2013 and the payment of property taxes for 2013; [10] and

iii. having involvement with MPAC issues relating to the farm properties, including:

1. the location and/or retention of certain documents in that regard; [11]

2. informing her brother Mark that the name of Mr Vanek needed to be removed from the property notice assessment for the Kent Bridge Farm; and

3. receiving Mark’s assurance that he would “take care of” that following receipt of the property notice assessments for 2018 and 2020. [12]

f. Nor does it seem disputed that, for some period or periods of time following Mary’s hospitalization and relocation to Riverview Gardens, Mark resided in the residential home situated on the Mason Line Farm, used the other buildings on that property, generally looked after both of the farm properties, and made various arrangements in relation to the farm properties, including involvement in MPAC issues and the making of arrangements for the farming of one or both of the farm properties for cash crops; i.e., by either doing such farming himself or arranging for someone else to do such farming. [13] To date, at least, it seems no one has located, or is aware of, any written lease agreement between Mary and Mark relating to either or both of the farm properties. [14] However, relevant documentation located to date by the parties, (not all of it legible, apparently), does include copies of numerous cheques issued by Mark and made payable to his mother Mary, and records of deposits made to Mary’s bank accounts. [15]

g. However, the proper legal characterization of the basis on which Mark may have conducted himself in relation to the farm properties owned by his mother Mary, prior to her death, is very much in dispute. In that regard:

i. In her application material and affidavit evidence, Sandra repeatedly asserts that Mark’s conduct in that regard was done pursuant to the legal authority granted to him by Mary via the Continuing Power of Attorney for Property noted above. [16] At the risk of over-simplification, Sandra takes the position that Mark was “managing” the farm properties for his mother pursuant to that power of attorney for property, ignored applicable conflict of interest considerations, and essentially engaged in inappropriate self-dealing by such a fiduciary by conferring benefits on himself, (e.g., residential accommodation, use of barns on the farm properties, and profits generated by farming those approximate 117 acres of land for cash crops), without providing corresponding fair market compensation to his mother. Without limiting the generality of the foregoing, Sandra has alleged, (directly and indirectly through correspondence sent by her previous counsel), that Mark abused the power of attorney authority granted to him by paying Mary no more than $85,912.00 for his use of the farm properties in the period from 2012 to 2019, whereas he should have paid Mary, (by Sandra’s indicated calculations), a further $285,000.00, had he been dealing fairly with his mother and paying Mary appropriate market value rent and/or lease payments for his use of the farm properties.

ii. In her material filed in response to Sandra’s application, Connie repeatedly asserts that “Mark was not acting as Power of Attorney for Property for Mary Powers”, and that Sandra’s indications to the contrary are simply not correct. [17] In that regard, she notes, inter alia :

1. that the relevant Continuing Power of Attorney for Property executed by Mary appointed Susan, Dave and Mark in the alternative, by appointing “Susan Salenbien OR Dave Salenbien OR Mark Van Ruymbeke”; [18]

2. that the Law Office of “Mallory Law” located in the town of Blenheim, Ontario, (i.e., the law firm which acted for Mary in the preparation and execution of her will and power of attorney arrangements), has confirmed to Connie over the telephone:

a. that Mary intended a power of attorney for property arrangement whereby Susan would be appointed as Mary’s attorney for property, with the appointment passing to Susan’s husband Dave only if Susan “could or would not act” in that capacity, with the appointment then passing to Mark only if Dave “could or would not” be appointed in that capacity; and

b. that Dave and Mark were to have “no power” via the Personal Care Power of Attorney executed by Mary “while Susan was acting”; [19] and

3. that Susan “managed Mary’s affairs”, “was the sole acting Power of Attorney for Property” for Mary, and “remained in [that] role until the passing of Mary Powers”. [20]

iii. Connie accordingly takes the position:

1. that it was Susan who was or should have been managing the farm properties;

2. that Mark was residing at the Mason Line Farm and looking after the farm properties only pursuant to arrangements effectively agreed upon between Susan and Mark; and

3. that unlike the situation in relation to Susan, (who did properly act as an attorney for property pursuant to the relevant Continuing Power of Attorney for Property executed by Mary), there is simply no basis for any Order requiring Mark or his estate representative to pass accounts relating to Mark’s exercise of a power of attorney for property authority that actually was never granted to him, or exercised by him, in the circumstances. [21]

iv. Connie also says that, in her conversations with her deceased mother and brother, there had never been mention of any potential debt owed by Mark to Mary. [22] Connie also is not aware of any leasing arrangement between Mary and Mark as far as the farm properties are concerned. [23] In that regard, Connie’s supplementary affidavit confirms, inter alia :

1. that she has reviewed all of Mark’s records regarding rent paid to Mary in relation to the Mason Line Farm;

2. that the only records she has been able to locate are bank statements and some cheques showing rent payment, insurance and property taxes in relation to that property, all of which have been produced to Sandra;

3. that inquiries made of Cheryl Hyatt, (who acted as Mark’s bookkeeper for many years), resulted in Ms Hyatt indicating that she too has no records or notes regarding rental of the Mason Line Farm by Mark; and

4. that Connie has no other records regarding rent paid by Mark in relation to the Mason Line Farm, and is aware of no other sources of information regarding such rent. [24]

v. For her part, in her affidavit material Susan candidly acknowledges that she acted as the holder of a power of attorney for property granted by her mother Mary, and indicates that she is willing and ready to pass her accounts in that regard, having already retained an accountant and lawyer to provide her with assistance for that purpose. [25]

vi. Susan also indicates that, while acting pursuant to the power of attorney for property granted by her mother Mary, she did a number of things in relation to the farm properties, including, as noted above:

1. being in charge of paying bills relating to the Kent Bridge Farm and the Mason Line Farm, except for the payment of farm insurance for 2013 and the payment of property taxes for 2013; [26] and

2. having involvement with MPAC issues relating to the farm properties, including:

a. the location and/or retention of certain documents in that regard; [27]

b. informing her brother Mark that the name of Mr Vanek needed to be removed from the property notice assessment for the Kent Bridge Farm; and

c. receiving Mark’s assurance that he would “take care of” that following receipt of the property notice assessments for 2018 and 2020. [28]

vii. Susan nevertheless says that Mark “was extremely difficult to deal with”, and essentially “did what he wanted, when he wanted” in relation to the farm properties, such that he effectively “was in charge of and made decisions” in relation to those farm properties, looking after them “in his own best interests”, and generally “continuing to take care of all issues” relating to the farm properties except to the extent Susan did so, as noted above. [29] It was Susan’s understanding and belief that Mark was doing so pursuant to a delegation of responsibilities authorized by their mother’s Continuing Power of Attorney for Property, a copy of which had been provided to Mark. [30]

viii. Despite that understanding and belief, Susan and her counsel indicated during the course of the hearing before me that, apart from passing her accounts in relation to her acknowledged role as an attorney for property who acted for her mother Mary, Susan generally desires and intends no further participation in this litigation as a party favouring and advocating for one outcome or the other. At most, it was said, Susan’s counsel would maintain only a “watching brief” in that regard. [31]

Fundamental Dispute Requiring Trial of an Issue

Fundamental Dispute Requiring Trial of an Issue

4In the course of this endorsement, I will address the various forms of relief sought by Sandra’s application.

5However, I think it helpful to indicate at the outset, for the purpose of clarity, my view that determination of whether the granting of such relief would be appropriate turns, in many instances, on resolution of a fundamental dispute that requires trial of an issue.

6In particular, for reasons hopefully made clear in the balance of this endorsement, Sandra’s proffered justifications for the granting of such relief frequently are based on a fundamental premise; i.e., that Mark, in the prevailing underlying circumstances, actually was granted power of attorney for property authority in relation to his mother Mary’s property, and did whatever he may have done in relation to that property as an attorney for property.

7As noted above, that fundamental premise is very much in dispute in these proceedings, and despite the urgings of Sandra’s counsel to the contrary, I do not think it is an issue capable of being properly determined based solely on the affidavit material presented for my consideration.

8In that regard, Sandra’s counsel argued that the relevant Continuing Power of Attorney for Property executed by Mary in June of 2010 was unambiguous, and clearly intended simultaneous and immediate appointment of multiple individuals as attorneys of property with power to act severally rather than jointly; i.e., such that Mark, (as one of the named individuals), was immediately empowered to act independently as an attorney for property for Mary, and therefore should be presumed to have been acting in that capacity to the extent he dealt with Mary’s property between 2012 and 2019.

9While I agree that is one possible interpretation of the relevant appointment provisions in the Continuing Power of Attorney for Property executed by Mary, I disagree that the document is unambiguous in that regard.

10As noted above, the relevant “APPOINTMENT” clause in paragraph 1 of the relevant Continuing Power of Attorney for Property reads as follows:

I APPOINT my daughter SUSAN SALENBIEN or my son-in-law DAVID SALENBIEN [7] or my son MARK VANRUYMBEKE [sic] to be my attorney(s) for property, and I authorize my attorney(s) to do, on my behalf, any and all acts, which I could do if capable, except make a will, subject to any conditions and restrictions contained therein. [Emphasis added.]

11In my view, those provisions are equally consistent with an intention to immediately appoint a named individual as sole attorney for property, (i.e., with exclusive authority to act as Mary’s attorney for property), while also specifying the further individuals who were to assume that role as sole attorney for property in sequence , if the previously named individual or individuals were for some reason unwilling or unable to take up or continue in that role.

12In other words, I think it possible to read the “APPOINTMENT” provisions of the document as a statement of Mary’s intention to immediately appoint Susan as her sole attorney for property, with David properly stepping into that role if and only if Susan was for any reason unwilling or unable to act, and with Mark properly stepping into that role if and only if Susan and David were both unwilling and unable to act.

13Consistent with that interpretation, Connie’s counsel argued that, having regard to the underlying circumstances, Mark actually was never empowered to act as an attorney for property for Mary, (i.e., insofar as Susan was willing and able to act as attorney of property for her mother, and did so), and that Mark accordingly must be taken as having acted in some other capacity, (e.g., as a recalcitrant and delinquent tenant, a trespasser, or an interloper improperly claiming and/or asserting a power of attorney authority he actually did not have in the prevailing circumstances), whenever he may have dealt with Mary’s property from 2012 to 2019.

14Brevity may be the soul of wit, but it often fosters ambiguity in a legal document.

15I think that unfortunately is true in this case, as the Continuing Power of Attorney for Property executed by Connie unfortunately lacks the additional wording, frequently found in such “APPOINTMENT” clauses, that usually precludes any such ambiguity and puts a grantor’s intentions beyond doubt. For example:

a. The proper interpretation of the document and corresponding outcome might unequivocally have been that suggested by Sandra’s counsel, if the “APPOINTMENT” clause had said something to the effect of “I hereby simultaneously appoint my daughter Susan, son-in-law David and my son Mark to be my multiple attorneys for property, with each having the power to act severally in that regard”.

b. The proper interpretation of the document and corresponding outcome might unequivocally have been that suggested by Connie’s counsel, if the “APPOINTMENT” clause had said something to the effect of “I hereby appoint my daughter Susan to be my sole attorney for property. If for any reason she is unwilling or unable to act, I appoint my son-in-law David to be my sole attorney for property. If both Susan and David are for any reason unable or unwilling to act, I appoint my son-in-law David to be my sole attorney for property.”

16Sandra’s counsel argued that the reference to “attorney(s)” in the APPOINTMENT provisions indisputably resolved any ambiguity in favour of his preferred interpretation of the document; i.e., arguing that inclusion of the bracketed letter “s” meant that Mary must have been intending the simultaneous appointment of multiple attorneys for property.

17I disagree. In my view, when viewed in the overall context of the document, the reference to “attorney(s)” is equally consistent with Mary’s recognition that the document might result in the appointment of more than one sole attorney for property over time ; i.e., with more than one of the possible appointees taking up the role individually, but in sequence , depending on prevailing circumstances. For example, depending on future events, Susan might have assumed the role initially before having to resign because of illness, with David taking up the role on his own thereafter, but with Mark alone then having to then take on the role owing to Susan’s illness and David’s resignation or death. In such circumstances, Mary would have more than one sole attorney for property over time, thereby making it necessary to refer to “attorneys” in the plural for the purpose of:

a. confirming that each of those successive attorneys for property, (if there turned out to be more than one sole attorney for property appointed in sequence over time), had the powers conferred by paragraph 1 of the document; and

b. confirming that each of those successive attorneys for property, (if there turned out to be more than one sole attorney for property appointed in sequence over time), would be entitled to compensation as noted in paragraph 12 of the document, where the term “attorney(s)” is used again.

18I also think it notable that, reading the Continuing Power of Attorney for Property as a whole, (i.e., in order to ensure that the provisions of paragraph 1 are properly read in context), there are numerous instances, (e.g., in paragraphs 2, 3 and 8), wherein Mary refers to “my attorney” in the singular , without any use of the term “attorney(s)”; a factor which arguably militates in favour of the interpretation, favoured by Connie, that Mary contemplated having only one attorney for property in place at any particular time.

19Sandra’s counsel also argued that Mary must have intended a simultaneous appointment of all three named individuals to be her attorneys for property, capable of acting severally, as the wording of the document includes no explicit ranking or prioritization of those three named individuals to suggest how they would be appointed in sequence.

20Again, I disagree. The submission ignores the possibility that the ordered sequence in which the three individuals were named may have been Mary’s intended method of prioritization.

21If the document is ambiguous on its face, (and I think it is), one might then turn to extrinsic evidence; i.e., to assist in determining Mary’s true intentions and resolving the ambiguity. In that regard:

a. I note that it is generally more difficult to address such questions without a trial when presented solely with conflicting affidavits, (thereby raising concerns about credibility and reliability), from individuals with a personal interest in how such matters should be decided. Without limiting the generality of the foregoing, I note that, in this case:

i. Sandra is a residual beneficiary under Mary’s will, and accordingly has an interest in promoting an outcome that will maximize the assets in Mary’s estate; i.e., by allowing Mary’s estate, in which Sandra has an interest, to claim substantial recovery from Mark’s estate, in respect of which Sandra apparently has no interest.

ii. Susan has similar incentives in that regard, insofar as she also is a residual beneficiary under Mary’s will, without any apparent interest in Mark’s estate. However, Susan also has an interest in avoiding any interpretation suggesting that she may have abdicated or failed to follow through appropriately on her duties as a sole attorney for property of her mother’s estate; e.g., by effectively allowing her brother Mark to use and benefit from his mother’s property without making appropriate fair market payments in return.

iii. Connie also is a residual beneficiary under Mary’s Will. However, it seems that, in addition to having been appointed an estate trustee during litigation in relation to Mark’s estate, Connie also may be a principal beneficiary of that estate, depending on whether or not efforts by Aimee and Scott to set aside Mark’s putative last will and testament are successful. In such circumstances, Connie may very well have an incentive to promote an outcome which keeps more assets in Mark’s estate rather than seeing them returned to Mary’s estate, where Connie’s interest therein may be more diluted.

b. My own view is that evidence of how Sandra, Susan and Mark may have interpreted and/or currently interpret the relevant Continuing Power of Attorney for Property is not particularly helpful or persuasive when it comes to determining the attorney for property arrangements intended by Mary. As noted by Sandra’s counsel, the statements made in that regard by Connie in her affidavits are somewhat conclusive and inherently argumentative. However, I think the same can be said of similar statements made in that regard, (to the opposite effect), in the affidavits tendered by Sandra and Susan. The simple truth of the matter is that each of these siblings are lay persons who may not be interpreting the legal document and their mother’s stated intentions correctly, as far as their personal impressions of the Continuing Power of Attorney for Property document are concerned.

c. For similar reasons, in my view the evidence of what Susan and/or Mark may have done in relation to Mary’s property is not very helpful in determining the attorney for property arrangements actually intended by Mary, and resolving ambiguities in the relevant Continuing Power of Attorney for Property Document. In particular:

i. None of that evidence, outlining what the siblings may have done or not done years after Mary executed the Continuing Power of Attorney for Property, really addresses what Mary intended when she executed that document.

ii. At best, such evidence might provide an indirect indication of Mary’s intention at the time of the document’s execution; e.g., if it was coupled with further evidence indicating that Mary was fully informed of all such conduct, and expressly confirmed that it was consistent with the attorney for property arrangements she had intended. However, no such evidence has been presented to date, and any such evidence seems both unlikely, and unlikely to be persuasive if offered, having regard to other indications that Mary was suffering from one or more forms of dementia during the years in question.

iii. At worst, such evidence will merely underscore the reality that characterization of what the siblings did, years after execution of Mary’s Continuing Power of Attorney for Property, turns on resolution of the underlying ambiguity therein. For example, depending on how one resolves that ambiguity:

1. The situation that developed from 2012 onwards may have involved Susan and Mark, as two simultaneously appointed attorneys for property capable of acting severally, agreeing to divide responsibility for dealing with various aspects of their mother’s property, with Mark thereafter possibly abusing his fiduciary duties in that regard.

2. Conversely, the situation that developed from 2012 onwards may have involved Susan, as the initially appointed sole attorney for property, (and the only attorney for property thus appointed, given that she was willing and able to take up the appointment, making resort to the successive alternative appointees considered by Mary unnecessary), embarking on her duties as Mary’s attorney for property, but thereafter abdicating her responsibilities to some extent by permitting Mark to benefit from use of his mother’s property without making any fair market payments in exchange; e.g., because Susan admittedly found her brother “extremely difficult to deal with”, and therefore was reluctant to take the formal steps a more diligent attorney for property might have pursued in the circumstances in order to protect Mary’s interests.

d. I also think that little turns on whether Mark possessed a copy of the Continuing Power of Attorney for property executed by his mother. In my view, that is consistent with each individual named in the “APPOINTMENT” provisions being given documentary evidence of their authority to act severally, but also consistent with each such individual being given documentary evidence of their authority to take up the mantle of Susan’s sole attorney for property only in the sequence indicated by Mary, if called upon to do so.

e. In my view, it may be more telling that, when executing her Continuing Power of Attorney for Property, Mary also executed her final will and testament, which used the conjunctive word “and”, (rather than the disjunctive word “or”), and nothing but use of plural references thereafter, when demonstrating a clear intention to simultaneously appoint three individuals as her executors and trustees. In particular:

i. As noted above, the appointment clause in Mary’s will reads as follows: “I appoint my daughter SANDRA WALLIS and my daughter SUSAN SALENBIEN and my son MARK VANRUYMBEKE (sic) to be the Executors and Trustees of this my Will, and I hereinafter refer to them as my trustees .” [Emphasis added.]

ii. Through the remainder of that will, (e.g., in the preamble to paragraph III, and in paragraphs IV, V, VI and VII), Mary does indeed only refer to her “trustees” in the plural.

iii. In my view, if Mary clearly had the demonstrated ability to use such wording to indicate an intention of immediate simultaneous appointment of multiple individuals to a position in the context of her will, it raises obvious questions as to why she failed to use similar wording in her Continuing Power of Attorney for Property, if she similarly intended to simultaneously appoint multiple attorneys for property.

f. In my view, evidence from the lawyers who helped Mary prepare and execute her Continuing Power of Attorney for Property may be even more telling and decisive, in terms of resolving the ambiguity in that document. In that regard:

i. As noted above, the affidavit evidence tendered by Connie alludes to such evidence; i.e., indicating that representatives of Mallory Law, (the law firm which acted for Mary in the preparation and execution of her will and power of attorney arrangements), have confirmed Mary’s intention to implement a power of attorney for property arrangement whereby:

1. Susan would be appointed as Mary’s sole attorney for property, with the appointment passing to Susan’s husband David if Susan “could not or would not” act in that capacity, with the appointment then passing to Mark if Dave similarly “could not or would not” act in that capacity; and

2. Dave and Mark were to have “no power” via the relevant Continuing Power of Attorney for Property “while Susan was acting”.

ii. In my experience, preference for such an arrangement over the simultaneous appointment of multiple attorneys for property, each empowered to act severally and therefore independently of each other at all times, would not be surprising. In particular, the appointment of several attorneys for property, each empowered to act severally without involvement of the other, obviously creates the spectre of potentially inconsistent and conflicting actions in relation to the grantor’s affairs.

iii. For present purposes, however, Sandra’s counsel rightly points out that Connie’s evidence in relation to such matters is inherently hearsay. I also agree with his further submission that such evidence therefore may not be accurate, and therefore is not the preferred sort of evidence upon which the court should decide an issue of fundamental importance between the parties.

iv. I nevertheless disagree with the submission of Sandra’s counsel that such evidence should be ignored completely for purposes of making a decision as to whether a final determination of the Continuing Power of Attorney for Property’s interpretation should be made now, or instead be deferred for determination after a directed trial of an issue. In that regard, it was emphasized by Sandra’s counsel that Connie could have taken steps to secure more direct evidence from the Mallory law firm, for presentation to the court in the context of this application hearing, but failed to do so. In my view, however, the same could be said of Sandra, who arguably was in a better position to obtain such evidence as Mary’s estate representative.

v. For present purposes, I think it important to note that the overall supervisory estate jurisdiction relied upon by the applicant, wherein the court is empowered by the law of equity and legislation to safeguard the interests of someone who grants a power of attorney for property, is multi-faceted and extends in different directions. In particular, while the court does indeed have jurisdiction to ensure that the grantor of such a power’s interests are not abused, the court also has jurisdiction to ensure that the grantor’s true intentions in relation to the granted power are confirmed and respected. In my view, if the grantor’s intentions are not immediately clear from the document granting the relevant power of attorney, (i.e., because the document is ambiguous), and important direct evidence of the donor’s true intentions may be available, the court should have benefit of that evidence before making a fundamental determination turning on those intentions.

22Before going further, I should emphasize that none of my above comments should be taken as a direct or indirect determination of how the fundamental dispute underlying most of the parties’ other disagreements should be decided, one way or the other.

23They simply highlight why, in my opinion, that fundamental dispute should be addressed and resolved by way of a directed trial of an issue pursuant to Rule 38.10 of the Rules of Civil Procedure, particularly when further important issues turn on that fundamental determination, for additional reasons outlined below.

24With all of the above considerations in mind, I now turn to the various forms of relief sought by Sandra in her application. In doing so, I note at the outset that, for the reasons indicated hereafter:

a. some of Sandra’s requests were capable of being addressed in the current context; but

b. other requests made by Sandra, in my view, need to be revisited after the fundamental underlying dispute, (i.e., concerning proper interpretation of the Continuing Power of Attorney for Property, and corresponding characterization of Mark’s status and conduct), has been addressed and resolved by trial of an issue.

Request for Order Transferring the Farm Properties from Mary’s Estate to Mark’s Estate

Request for Order Transferring the Farm Properties from Mary’s Estate to Mark’s Estate

25During the hearing before me, I turned first to the applicant Sandra’s request for an Order compelling Sandra herself, as executor and trustee of her mother Mary’s estate, to transfer the farm properties to Connie as Estate Trustee During Litigation pursuant to Superior Court File No. CV-20-642.

26I did so because my review of the material did not suggest any significant opposition to the request.

27Counsel indicated that was indeed the case. In particular:

a. Shortly before the hearing, counsel for Sandra had circulated a proposed draft Order in that regard; an order that apparently was intended to “mirror” certain provisions of the earlier Order made by Justice Carey on January 12, 2021, (in the context of Henry v. Van Ruymbeke , Court File No. CV-20-642), a copy of which had been included in Sandra’s application material at pages A60-A64 of the applicant’s Caselines filing. In particular, the operative provisions of the proposed draft Order circulated by Sandra’s counsel largely replicated the provisions found at paragraphs 2 and 13 of the Order made by Justice Carey, which:

i. specified various conditions, restrictions and other terms upon which Connie had been appointed Estate Trustee During Litigation of Mark’s estate; and

ii. made it clear that there was to be no distribution of any property or assets of Mark’s estate to estate beneficiaries until such time as the issues raised within Court File No. CV-22-00971 have been finally resolved, settled or determined, or until further Order of the court.

b. Mr Rhodes, as counsel for Susan, Aimee and Scott, indicated that his clients were content with the form and content of that proposed draft Order, apart from a request that certain wording, requiring the farm properties to “be transferred” to Connie in her capacity as the Estate Trustee During Litigation for Mark’s estate, be revised or amended to instead require that the farm properties “be vested” in Connie in her capacity as the Estate Trustee During Litigation for Mark’s estate, as so to mirror more precisely the vesting terminology used in sub-paragraph 2(b) of the earlier Order made by Justice Carey.

c. Counsel for Connie indicated that the proposed draft Order was agreeable, with the revision/amendment thereto requested by counsel for Susan, Aimee and Scott, but noted a preference for the Order to refer to his client’s first name as “Connie” rather than “Constance”, (as suggested by Sandra’s counsel), as his client had never, (to his knowledge at least), used or gone by the name “Constance”.

d. In reply, counsel for Sandra suggested that the relevant wording of the proposed draft Order be changed so as to require the farm properties to “be vested” in “Constance Van Ruymbeke, also known as Connie Van Ruymbeke”, and all concerned indicated that they were content with that suggested revision to the draft Order.

28For my part, I do not think all provisions of the proposed draft Order, as revised in accordance with the preceding paragraph, are strictly necessary.

29In particular, in my view Connie would be obliged in any event to abide by the conditions, restrictions and terms, set forth in paragraphs 2 and 13 of Justice Carey’s existing Order, in relation to any and all property coming into her possession as Estate Trustee During Litigation of Mark’s estate. However, if having the security of having certain conditions, restrictions and/or terms formally reiterated in the terms of a further Order makes the parties to this litigation more comfortable with the making of such an order, in principle I generally see no harm in doing so.

30Having said that, it seems to me, on closer examination and further reflection, that the wording of paragraphs 2 and 13 of Justice Carey’s Order cannot and should not simply be “cut and pasted” verbatim into the proposed new Order without further appropriate amendments. I say that for a number of reasons, which include the following:

a. Several of the provisions being lifted from the Order made by Justice Carey contain wording which makes direct or indirect reference to the proceeding in which that Order was made , and simply transporting the provisions verbatim into the context of an Order made in this proceeding, without appropriate further amendments, accordingly would not just reiterate the relevant provisions of Justice Carey’s Order but effectively change their substantive import, resulting in new and different court-ordered obligations. For example:

i. Sub-paragraph 2(a) of the Order made by Justice Carey required that Connie’s disbursement of any and all amounts from Mark’s estate exceeding $2,500.00 would require “the consent of all parties to the proceeding ”. [Emphasis added.] Read in context, that clearly was a reference to all parties to the proceeding in Court File No. CV-22-00971, and not all parties to this proceeding. Simple transportation of the wording of the relevant sub-paragraph to an Order made in this proceeding, without further appropriate amendments, effectively would impose an additional (and in my view inappropriate) restriction on Connie in her capacity as Estate Trustee During Litigation of Mark’s estate, and indeed all parties to that other proceeding, to also obtain the consent of all parties to this proceeding to any disbursement from Mark’s estate in an amount exceeding $2,500.00. Without limiting the generality of the foregoing, I was presented with no justification for requiring Connie and any of the parties to that other proceeding to obtain a consent to such a disbursement from parties such as Sandra and Susan, (parties to this proceeding, but not parties to the proceeding in Court file no. CV-22-00971), when neither Sandra nor Susan has any demonstrated beneficial interest or potential beneficial interest in Mark’s estate. At best, Mary’s estate, (as represented by Sandra), is simply a potential unsecured creditor with an unproven claim against Mark’s estate, and Susan merely has a beneficial interest in that potential unsecured creditor; i.e., her mother’s estate. In my view, neither Sandra nor Susan effectively should be given security in relation to unproven claims against Mark’s estate, (i.e., by effectively making disbursements of more than $2,500.00 from that estate require the prior approval of Sandra and Susan), unless and until the requirements for obtaining relief in the nature of a Mareva injunction have been satisfied.

ii. Sub-paragraph 2(f) of the Order made by Justice Carey permits Connie, as Estate Trustee During Litigation of Mark’s estate, to preserve the value of that estate by selling or liquidate assets of that estate with a value of up to $7,500.00 if they would otherwise depreciate in value “during the course of this proceeding ”, [emphasis added], unless such an asset is the subject of a specific bequest in Mark’s will dated March 4, 2020, in which case the asset is to be kept by the estate “pending the outcome of the within proceeding ”, [emphasis added], unless there is a “consent of all parties to the within proceeding ”, [emphasis added], or a court order. Read in context, all of those provisions clearly referred to the proceeding in Court File No. CV-22-00971, and the parties to that proceeding. The provisions made sense in that context, as they preserved the value of Mark’s estate for the benefit of those with an interest therein who were engaged in litigation, concerning entitlement to share in that estate, during the course of litigation to determine that entitlement. Simple transportation of the sub-paragraph’s provisions from their original context into a new Order made in this proceeding, without further appropriate amendments, effectively would change the “proceeding” to which reference is being made, and therefore change, (in my view inappropriately), the substantive import of the provisions. I was presented with no rational reason why liquidation of any assets in Mark’s estate should depend on whether they would depreciate in value during the course of this proceeding, be retained in their current form until the conclusion of this proceeding, or require the consent of all parties to this proceeding. Again, in my view neither Mary’s estate (represented by Sandra) nor Susan effectively should be given any form of security in relation to unproven claims against Mark’s estate, (raised in this proceeding), unless and until the requirements for obtaining relief in the nature of a Mareva injunction have been satisfied.

iii. Paragraph 13 of the Order made by Justice Carey says that no distribution of any of the property or assets of Mark’s estate “to the beneficiaries” shall take place “until such time as the within issues have been fully resolved, settled or determined”, [emphasis added], or until further order of this court. Read in context, Justice Carey’s Order obviously was intended to postpone distribution of Mark’s estate to any of its beneficiaries until the identity of those beneficiaries had been determined by resolution of the will validity issues identified elsewhere in Justice Carey’s Order; i.e., the issues expressly identified in paragraphs 3 and 4 of that Order. Read in their original context, such provisions made sense for obvious reasons; i.e., one cannot and should not make beneficial distributions of an estate’s assets until one knows who the beneficiaries of that estate actually are. However, simple transportation of those provisions into the context of the new Order to be made in this proceeding, without appropriate amendments, effectively and inappropriately (in my view) would change their import; e.g., by delaying any distribution of Mark’s estate assets to the beneficiaries of Mark’s estate until the resolution of the completely different issues raised within this proceeding. In my view, there was no demonstrated rationale for the imposition of such a fundamentally different and additional restriction. Once again, in my view neither Mary’s estate (represented by Sandra) nor Susan effectively should be given any form of security in relation to unproven claims against Mark’s estate, (raised in this proceeding), unless and until the requirements for obtaining relief in the nature of a Mareva injunction have been satisfied.

b. Several of the provisions being lifted verbatim from the Order made by Justice Carey contain temporal wording indicating that certain requirements were being lifted or imposed, and/or certain changes in ownership were taking place, with the making of Justice Carey’s Order . For example: sub-paragraph 2(b) of that Order indicated that “the requirement to post security is hereby dispensed with”, [emphasis added]; sub-paragraph 2(c) of that Order indicated that “the assets of the Estate of Mark Marshall Peter Van Ruymbeke hereby vest in the Estate Trustee During Litigation”, [emphasis added]; and sub-paragraph 2(h) of that Order indicated that “the Estate Trustee During Litigation is hereby granted leave to move for further directions as may appear advisable from time to time”, [emphasis added]. In my view, transporting such provisions verbatim from their original context, where they made sense, into the new Order, without further appropriate amendment, would result in this court making a new Order containing provisions that actually would be false and inaccurate; i.e., insofar as the indicated dispensation, vesting and granting of leave all have taken place already , prior to the making of the proposed new Order, and will not come to pass upon the making of the proposed new Order.

c. Several of the provisions being lifted from the Order made by Justice Carey essentially refer to regulation of the Estate Trustee During Litigation appointed in the context of that litigation; e.g., by addressing that estate representative’s ability to obtain appraisals or valuations, appoint an agent or agents to assist with performance of that estate representative’s duties, and the ability of that estate representative to move for further directions. In my view, it makes sense for such regulation to be continued within the context of that estate litigation, (i.e., the litigation in which the relevant estate trustee during litigation was appointed), and court orders made in other proceedings such as this one, purporting on their face to exercise further regulation of that estate trustee during litigation from a more removed context, are a recipe for potential unnecessary confusion, complication and expense that should be avoided. For example, if someone at some point in the future feels the need to move for a court-ordered revision to the relevant terms of Justice Carey’s original Order, which nevertheless have been replicated in the provisions of a further Order made in this proceeding in a manner that effectively may create similar but independent court-ordered obligations, (i.e., with two court orders, made in sequence, arguably directing the same relief independently, instead of the later order expressly recognizing that the relevant obligation stems from the original and ongoing court order), there may be understandable confusion as to:

i. whether the request should be advanced in the estate litigation proceeding having Court File No. CV-22-00971, in this proceeding, or both;

ii. whether one or both Orders require amendment; and

iii. which parties will be affected by the proposed amendment or amendments, thereby entitling them to notice of the motion seeking the proposed amendment or amendments, and a right to be heard in that regard.

d. None of the submissions I received during the course of the hearing before me suggested that any of the parties were alive to these various potential complications arising from the form and content of the revised proposed draft Order eventually put forward for my consideration. To the contrary, I formed the general impression that the relevant terms and conditions from Justice Carey’s Order had been replicated in the revised proposed draft Order because:

i. Aimee and Scott were content with the sense of assurance they effectively had obtained through the making of Justice Carey’s earlier Order;

ii. Aimee and Scott wanted a similar sense of assurance in the context of the farm properties being moved from Mary’s Estate to their father’s estate;

iii. Aimee and Scott felt they would obtain that similar sense of assurance by replicating or “mirroring” provisions of Justice Carey’s order in the new Order to be made, and their counsel therefore simply asked for that to be done;

iv. Susan was supportive of the request being made in that regard by her niece and nephew, and content to have the counsel she was sharing with her niece and nephew advance such a request;

v. Sandra was indifferent to providing Aimee and Scott with their desired assurance through the replication of such provisions from Justice Carey’s order, and her counsel, in an effort to be agreeable and facilitate Sandra’s desired transfer of the farm properties to Mark’s estate representative, therefore “mirrored” the relevant provisions as requested by creating a precise reflection of the wording used in the earlier Order; and

vi. Connie similarly was indifferent to providing Aimee and Scott with their desired assurance, and her counsel, in an effort to be agreeable, and facilitate Connie’s desired receipt of the farm properties as Mark’s estate representative therefore went along with that particular “mirroring” of the relevant provisions, as requested and implemented in the draft, without objection.

e. In any event, at the end of the day, it obviously is up to the court to make orders it considers appropriate, and refrain from making orders it considers to be inappropriate. With the release of this endorsement, I therefore also have signed a corresponding Order that resembles the proposed draft Order, but which nevertheless contains further revisions and amendments which, in my view, avoid the seemingly unintended problems and pitfalls outlined above while still providing the generally desired assurance that the farm properties being moved from Mary’s estate to Mark’s estate will be held by Connie, as Estate Trustee During Litigation, subject to the overall arrangement implemented by Justice Carey’s Order. I believe that was the essential intent of the parties, during the hearing before me. If I am mistaken about that, the parties who appeared before me may take the steps permitted by Rule 59.06 of the Rules of Civil Procedure to request amendment of the Order I have signed.

Requests for Standing and Leave, (if necessary), to Seek an Order Compelling an Attorney for Property to Pass Accounts

Requests for Standing and Leave, (if necessary), to Seek an Order Compelling an Attorney for Property to Pass Accounts

31As noted above, the relief sought by Sandra included a request for an order recognizing Sandra’s standing to bring an application, and/or granting Sandra leave to bring an application, for an order compelling a passing of accounts by each of Susan and Connie, (the latter in her capacity as estate trustee during litigation of Mark’s estate), in relation to actions Susan and Mark are said to have been taken pursuant to the Continuing Power of Attorney for Property executed by Susan.

32In that regard, numerous legislative provisions and legal principles relied upon by Sandra were and are not controversial. They include the following:

a. An attorney for property has the same obligations as a trustee to keep proper accounts, maintain a complete record of his or her activities, be in a position at all times to prove that he or she administered the grantor’s property prudently and honestly, (including accounts of all transactions involving the grantor’s property), and to have his or her accounts ready and give full information whenever required to do so. [32]

b. In Ontario, those obligations of an attorney for property have been buttressed and codified to some extent by the Substitute Decisions Act, 1992, S.O. 1992, c.30, (“the S.D.A.”), and regulations enacted thereunder; e.g., specifying in more detail what the accounts maintained by an attorney for property shall include. [33]

c. Subsection 42(1) of the S.D.A. confirms the court’s discretionary authority to order, on application, that an attorney for property pass all of his or her accounts, or a specified part thereof. [34]

d. Subsections 42(2) and 42(4) of the S.D.A. collectively indicate that those entitled to bring an application seeking an order directing the passing of accounts by an attorney for property, (i.e., those who have standing in that regard), include the following:

i. the grantor of the power of attorney for property;

ii. the attorney for property himself or herself;

iii. the grantor’s guardian of the person or attorney for personal care;

iv. a dependant of the grantor;

v. the Public Guardian and Trustee;

vi. the Children’s Lawyer;

vii. a judgment creditor of the grantor; and

viii. pursuant to paragraph 6 of s.42(4) of the S.D.A. , “any other person, with leave of the court”.

e. The test for granting leave allowing “any other person” to bring such an application, pursuant to paragraph 6 of s.42(4) of the S.D.A. , has been the subject of repeated judicial consideration, and is two-fold: the applicant must have a genuine issue in the welfare of the grantor of the power of attorney, and it must be reasonable to believe that a court hearing the matter may order the relevant attorney to pass accounts. Factors that have been considered in that regard include:

i. the age of the donee of the power;

ii. the capacity of the donee of the power;

iii. a refusal by the donee of the power to provide the would-be applicant or applicants with information concerning the particulars of his or her actions;

iv. the conduct of the donee of the power in prohibiting or limiting contact between the donor of the power and the would-be applicant or other family members; and/or

v. an amendment of the testamentary documents of the donor of the power in favour of the donee of the power. [35]

f. However, as noted above, the court’s authority to order an attorney for property to pass accounts or any part thereof remains discretionary; the court may make such an order, but is not required to do so. [36] In other words, even if a person has standing to apply for such an order, it remains within the discretion of the court to decide whether or not any passing of accounts should be ordered. Factors to be considered by the court, in exercising that discretion, include such matters as:

i. the extent of the attorney for property’s involvement in the grantor’s affairs; and

ii. whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs to warrant an accounting. [37]

33In this case, the parties were agreed that Sandra should be granted leave and standing to apply for an order directing a passing of accounts by Susan, in relation to Susan’s actions as an attorney for property pursuant to the Continuing Power of Attorney for Property executed by Mary, and I independently find that would be appropriate in the circumstances.

34Without limiting the generality of the foregoing:

a. There is no dispute that, in the underlying circumstances, Susan was granted power of attorney for property pursuant to the Continuing Power of Attorney for Property executed by Mary, and acted pursuant to that authority from 2012 to the time of her mother Mary’s death in 2019. Susan herself acknowledges that to be so, and Sandra and Connie, (as the estate trustee during litigation for Mark’s estate), agree.

b. The court therefore unquestionably has discretionary jurisdiction to order, on application, that Susan pass her accounts in whole or part in relation to her conduct pursuant to the Continuing Power of Attorney for Property.

c. There was no dispute that Sandra, as the would-be applicant for such an order in relation to Susan, does not fall within the enumerated types of persons who may apply for such an order unless she can bring herself within paragraph 6 of s.42(4) of the S.D.A. , and I independently agree that is so. Without limiting the generality of the foregoing, while Sandra is Mary’s executor and estate trustee, she is not Mary herself, (i.e., the donor of the relevant power of attorney), a donee of the relevant power of attorney, a dependant of Mary, or a judgment creditor of Mary.

d. However, the parties all were of the view that Sandra should be granted leave and resulting standing to bring such an application in relation to Susan pursuant to paragraph 6 of s.42(4) of the S.D.A. , and I independently agree that such leave should be granted. Without limiting the generality of the foregoing:

i. I am satisfied that Sandra had and has a genuine interest in the welfare of Mary, as grantor of the relevant power of attorney for property to Susan, which Susan in turn admittedly exercised. As one of Mary’s surviving children, Sandra has a natural interest in the affairs of her parent. [38] Beyond that, however, Sandra also has a legitimate and demonstrated interest in her mother Mary’s affairs as the appointed executor and estate trustee of her mother’s estate, and as a residual beneficiary of that estate.

ii. I also am satisfied that it is reasonable to believe that a court hearing the matter may order Susan to pass her accounts in relation to her acknowledged exercise of the power of attorney for property authority conferred upon Susan pursuant to the Continuing Power of Attorney for Property executed by Mary. In that regard:

1. Susan is an adult, and there is no suggestion that she is incapable of passing any such accounts. As noted earlier in these reasons, Susan has indicated that she is able to do so. In particular, she has been making preparations in that regard by retaining appropriate professionals to assist her if and as necessary.

2. There is no suggestion that Susan restricted contact between Mary and Sandra or other family members, that Susan has avoided such contact herself, or that Susan has refused to provide Sandra with information concerning the particulars of the actions taken by Susan while admittedly exercising the power of attorney for property conferred on Susan by the Continuing Power of Attorney executed by Mary. To the contrary, Susan has confirmed that she is not only ready and able to pass her accounts in that regard, but that she wants to pass her accounts in that regard; accounts which are likely to include a claim for compensation in relation to Susan’s activities as her mother’s attorney for property. As Sandra’s counsel noted in his written material and oral submissions, formal quantification or confirmation of that claim for compensation by Susan is something Sandra reasonably requires as Mary’s estate trustee.

3. For the record, I confirm that there is no suggestion that Mary’s testamentary documents were amended in favour of Susan during Susan’s admitted exercise of the power of attorney for property conferred upon her by Mary. As noted above, Mary executed her undisputed last will and testament on the same day she executed her Continuing Power of Attorney for Property, i.e., on June 11, 2010, and there is no suggestion that the underlying circumstances gave rise to any exercise of Susan’s power of attorney for property authority until 2012.

4. In relation to Sandra’s application for the making of an order compelling Susan to pass her accounts as an attorney for property for Mary, for the period from January 1, 2012, to September 6, 2019, I think it “reasonable to believe” that a court hearing the matter may order Susan to pass her accounts because I know that I will do so, for the reasons outlined in further detail below.

35The revised draft proposed Order I have finalized and signed therefore includes provisions which formally grant Sandra leave, pursuant to paragraph 6 of s.42(4) of the S.D.A. , and resulting standing, to bring an application for an Order compelling Susan to pass accounts as attorney for property for Mary, for the period from January 1, 2012, to September 6, 2019. [39]

36For the time being, at least, I nevertheless have not made and am not making a similar Order granting Sandra leave and resulting standing to apply for an order directing a passing of accounts by Connie, (in her capacity as estate trustee during litigation for the estate of Mark), in relation to Mark’s alleged actions as an attorney for property pursuant to the Continuing Power of Attorney for Property executed by Mary.

37To be clear: my refraining from making such an Order does not reflect any determination on my part that the ultimate making of such an Order would be inappropriate.

38It instead turns on my view that the court is not yet in a position to make a proper determination as to whether or not such an Order should be granted, and that Sandra’s request in that regard, (i.e., that aspect of Sandra’s application herein), should be adjourned to be disposed of by the trial judge hearing and determining an issue to be tried, as discussed in more detail below.

39In that regard, were I making a decision now as to whether Sandra should be granted leave and therefore standing pursuant to paragraph 6 of s.42(4) to apply for an order directing a passing of accounts by Connie, (in her capacity as estate trustee during litigation for the estate of Mark), in relation to Mark’s alleged actions as an attorney for property pursuant to the Continuing Power of Attorney for Property executed by Mary, I would have little difficulty finding that Sandra has a genuine interest in Mary’s welfare as required, for the purpose of making the requested determination. In particular:

a. the parties agreed that Sandra did have such an interest, and the respondents undertook to concede that point in the future if and when the question comes before the court again; and

b. as noted above, in paragraph 34(d)(i) of this endorsement, I am satisfied that Sandra had and has a genuine interest in the welfare of Mary, as grantor of the relevant power of attorney, in that:

i. as one of Mary’s surviving children, Sandra has a natural interest in the affairs of her parent; and

ii. Sandra also has a legitimate and demonstrated interest in her mother Mary’s affairs as the appointed executor and estate trustee of her mother’s estate, and as a residual beneficiary of that estate.

40However, I do not think the court currently is in a position to determine whether or not it is reasonable to believe that a court hearing the matter may order Connie, (in her capacity as estate trustee during litigation for the estate of Mark), to pass accounts in relation to Mark’s alleged exercise of a power of attorney authority said to have been conferred upon him by the Continuing Power of Attorney for Property executed by Mary.

41Without limiting the generality of the foregoing:

a. As noted above, pursuant to s.42(1) of the S.D.A. , the court “may, on application, order that all or a specified part of the accounts of an attorney … of property be passed”. [Emphasis added.] On their face, those legislative provisions, and the court’s jurisdiction referred to therein, simply have no application to someone who actually was never an attorney of property in the prevailing circumstances of a particular case.

b. As noted above, there is a fundamental factual dispute in this case as to whether or not Mark, in the underlying circumstances, actually was ever granted any power of attorney for property authority pursuant to the Continuing Power of Attorney for Property executed by Mary.

c. For similar reasons, there is a corresponding fundamental factual dispute in this case as to whether anything Mark may have done in relation to his mother Mary’s property actually was ever done by Mark as an attorney for property, instead of actually being done in some other capacity; e.g., as a recalcitrant and delinquent tenant, as a trespasser, or as an interloper improperly claiming and/or asserting a power of attorney authority which he actually did not have in the prevailing circumstances.

d. In my view, these are not issues and distinctions without significance. To the contrary:

i. As already noted, they have the potential to determine whether or not the court, having regard to the particular circumstances of this case, has the jurisdiction the applicant wants the court to exercise in terms of ordering a passing of accounts by Connie, (as Mark’s estate trustee during litigation), in relation to Mark’s activities.

ii. In my view, the resolution of such issues also has the potential to determine whether or not the relief being sought by the applicant vis-à-vis Mark’s estate representative and estate is barred by an applicable limitation period. In that regard:

1. Sandra’s application herein, brought on behalf of Mary’s estate, was initiated on or about May 31, 2022; i.e., more than two years after Mary’s death on September 6, 2019, and more than two years after any alleged exercise of the authority granted by Mary pursuant to the Continuing Power of Attorney for Property executed by Mary.

2. Sandra makes no secret of the fact that she wants a court order compelling a passing of accounts by Mark’s estate representative, (an order the making of which Connie opposes in her capacity as the estate trustee during litigation of Mark’s estate), as a prelude to seeking, on behalf of Mary’s estate, significant remedial relief from Mark’s estate for what Sandra perceives to be a clear and obvious abuse of Mark’s fiduciary duties as an attorney for property.

3. In responding to Sandra’s application herein, Connie formally raises a limitation period defence. In particular:

a. Connie relies primarily on the limitation period set forth in s.38(3) of the Trustee Act, R.S.O. 1990, c.T.23, which requires claims by or against executors, on behalf of the estate of a deceased person, described in s.38(1) of the Trustee Act, supra , [40] to be brought within two years of the date of death. That is one of the limitation periods expressly listed in the schedule to the Limitations Act, 2002, S.O. 2002, c.24, and pursuant to section 19 of that legislation, in the event of a conflict between the limitation period set forth in s.38(3) of the Trustee Act, supra , and the limitation period provisions of the Limitations Act, 2002, supra , the former prevails.

b. The discoverability provisions of the Limitations Act, 2002 , supra , accordingly have no application to the limitation period set forth in s.38(3) of the Trustee Act , supra ; a limitation period which, according to decisions of our Court of Appeal and the Supreme Court of Canada, is fixed and not subject to discoverability. [41]

c. Consistent with her position that Mark actually was never granted any power of attorney for property authority by Mary in the underlying circumstances, and therefore never properly acted pursuant to any such authority, Connie takes the position that any claim by Sandra as Mary’s estate representative, seeking redress and compensation from Mark’s estate for whatever Mark may have done or failed to do in relation to his mother’s property, involves:

i. a claim by Mary’s executor, on behalf of Mary’s estate, that has nothing to do with the conduct of an attorney for property;

ii. a claim falling within the scope of s.38(1) of the Trustee Act , supra , which generally covers claims on behalf of an estate sounding in tort, contract and breach of fiduciary duty, as noted above; and

iii. a claim which accordingly is being brought outside the applicable limitation period set forth in s.38(3) of the Trustee Act , supra .

4. In reply, Sandra takes the position that the matter is governed instead by appellate authority confirming that an attorney for property’s application to pass accounts for the purpose of seeking approval of those accounts, (including approval of compensation previously taken or sought), and the filing of notices of objection to accounts in response to an application to pass accounts, are not subject to the two-year general limitation period found in section 4 of the Limitations Act, 2002, S.O. 2002, c.24. [42] In that regard, I note the following:

a. In making those determinations, our Court of Appeal focused primarily on relevant wording of the Limitations Act 2002, supra .

b. As for applications by an attorney for property to pass his or her accounts, section 2 of the Limitations Act, 2002, supra , indicates that the legislation applies only to “claims” pursued in court proceedings and, as indicated in section 1 of the legislation, a “claim” is defined for purposes of the Act to mean “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. Our Court of Appeal held that, “in seeking court approval for his or her passing of accounts, an attorney for property is not seeking redress for any loss, injury or damage”, but “approval from the court of his or her actions in managing the property, including approval for compensation previously taken or now sought”. An attorney for property’s own application to pass his or her accounts therefore is the opposite of “remedial”, insofar as the attorney for property seeks a court order that no remedy is necessary with respect to his or her accounts. For the purposes of the Limitations Act, 2002, supra , such applications accordingly do not fall within the Act’s definition of “claims”, and the legislation, (including the two-year general or “basic” limitation period found in section 4 of the Act), therefore does not apply to such applications, which are subject only to the equitable defences of laches and acquiescence.

c. As for notices of objection made in relation to applications by an attorney for property to pass his or her accounts, the general or “basic” two-year limitation period set forth in section 4 of the Limitations Act, 2002, supra , says that, unless the Act provides otherwise, “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”. Our Court of Appeal held that, by filing a notice of objection to accounts in response to an application to pass accounts, a party is “not commencing a proceeding in respect of a claim” within the meaning of section 4 of the Limitations Act, 2002, supra , and that the time for filing such a notice of objection accordingly is not limited by that section.

5. However, Sandra’s reliance on that appellate authority, in relation to the limitation period issue, clearly is dependent on a fundamental premise that, having regard to the underlying facts, Mark actually was granted power of attorney for property authority by his mother Mary, and was acting pursuant to that authority when dealing with his mother’s property. Again, that fundamental premise is very much disputed in this case. If Mark actually was not granted power of attorney for property authority by his mother Mary, and his alleged misconduct in relation to his mother’s property actually was done in some other capacity, (e.g., as a recalcitrant and delinquent tenant, a trespasser, or an interloper improperly claiming and/or asserting a power of attorney authority he actually did not have in the prevailing circumstances), then:

a. the Court of Appeal decisions relied upon by Sandra arguably have no application to the present situation;

b. the situation instead may very well be viewed as one involving a claim covered by s.38(1) of the Trustee Act , supra ; and

c. that in turn arguably may make Sandra’s application/claim one that is barred by the limitation period set forth in s.38(3) of the Trustee Act , supra , for the reasons outlined above.

6. Moreover, in the event a determination is made that Mark was granted power of attorney for property authority by his mother, and was acting pursuant to that authority when dealing with his mother’s property, Sandra’s application to compel a passing of accounts by Connie, on behalf of Mark’s estate, may still have to overcome a further limitation period argument being advanced on Connie’s behalf. In that regard:

a. As noted above, to take the matter outside the possible application of s.38(1) and s.38(3) of the Trustee Act , supra , (the effect of which is preserved by section 19 of the Limitations Act, supra ), Sandra relies upon our Court of Appeal’s in Armitage v. The Salvation Army, 2016 ONCA 911, supra , which concluded that an application by an attorney to pass his or her own accounts is not a “claim”, and is therefore not subject to the Limitations Act, supra .

b. However, as emphasized in Estate of Celeste Dos Santos (Re), 2022 ONSC 3824, at paragraphs 42-43 , the Court of Appeal’s decision in Armitage v. The Salvation Army , supra , would seem to have no application to an originating process brought by someone other than an attorney for the purpose of compelling an attorney to pass his or her accounts, as such an originating process would appear to constitute a “claim” within the meaning of the Limitations Act, supra . Such a characterization arguably is all the more compelling when, as in this case, the party seeking an order compelling an attorney to pass his or her accounts openly does so for the intended purpose of seeking to remedy, through an award of appropriate compensation or damages, a perceived injury, loss or damage that is said to have occurred as a result of alleged acts or omissions by the attorney. In such circumstances, a party pursuing such relief clearly is not seeking “approval” of the attorney’s conduct, but condemnation of that conduct and consequential relief; realities which arguably take the situation outside the rationale, outlined by the Court of Appeal in Armitage v. The Salvation Army , supra , for not viewing an attorney’s application seeking approval of his or her own accounts as a “claim” within the meaning of the Limitations Act, supra .

c. Counsel for Sandra argues that Estate of Celeste Dos Santos (Re) , supra , was wrongly decided and is contrary to the policy considerations noted by our Court of Appeal in Wall v. Shaw, 2018 ONCA 929, supra , wherein concern was expressed about the risk associated with interpreting limitation period legislation in a manner insulating an estate trustee’s management of an estate from effective scrutiny; a concern that arguably may apply with equal force to interpreting such legislation in a manner that insulates an attorney for property’s conduct in relation to the property of the grantor of such a power of attorney.

d. In my view, it would be unwise and inappropriate to render a decision purporting to address and resolve that particular legal issue in circumstances where the need for doing so remains hypothetical at this stage of the proceedings; i.e., when Mark’s status as an attorney for property, acting in that capacity when dealing with his mother’s property, has yet to be determined. In other words, depending on how the parties’ fundamental underlying dispute in that regard is resolved, it may or may not be necessary to address this further legal issue. I simply note the existence of that potential further legal issue now, in order to emphasize a further consideration that may make the possibility of the court ordering Connie to pass accounts on behalf of Mark’s estate, in relation to Mark’s alleged conduct as a power of attorney, more remote.

e. The ability of Sandra to obtain an order compelling Connie to pass accounts on behalf of Mark’s estate in relation to his alleged conduct as an attorney for property accordingly depends, in large measure, on a determination of whether Mark actually was granted power of attorney for property authority by his mother Mary, and was acting pursuant to that authority when dealing with his mother’s property.

f. However, for the reasons outlined above, in my view those fundamental determinations nevertheless are something incapable of proper resolution based on the filed affidavit material alone, and instead merit trial of an issue pursuant to Rule 38.10 of the Rules of Civil Procedure.

g. In my view, that reality in turn prevents me from making a proper determination as to whether it currently is reasonable to believe, (in the existing state of affairs presented for my consideration), that a court hearing the matter “may” order Connie, as estate trustee during litigation of Mark’s estate, to pass accounts on behalf that estate in relation to Mark’s alleged conduct as an attorney for property for Mary; i.e., the second prerequisite for granting Sandra leave, pursuant to paragraph 6 of s.42(4) of the S.D.A. , to bring her desired application in relation to Mark. Without limiting the generality of the foregoing:

i. In my view, the situation currently before me, in terms of relevant possibility, (i.e., to assess whether the court “may” make the passing of accounts order sought by Sandra in relation to Mark), essentially reduces, at this stage of the proceedings, to little more than a proposition that the court “may” order an attorney for property to pass his or her accounts if that person is found to have been an attorney for property.

ii. However, that proposition obviously is little more than a legal tautology; i.e., a level of possibility which will always be true, in any given case, having regard to the clear legislative and judicial authority noted earlier in these reasons.

iii. In my view, the second prerequisite for standing pursuant to paragraph 6 of s.42(4) of the S.D.A. accordingly must require something more; i.e., a case specific demonstration that the making of the desired “passing of accounts” order is likely to be a possibility, (not to be confused with any further demonstration that what is likely to be possibility will in turn probably come to pass), in the situation before the court.

iv. In the current state of affairs, however, Sandra cannot demonstrate that making of the desired passing of accounts order is likely to be a possibility without demonstrating that Mark was an attorney for property and acting as such in relation to his mother’s property; something which requires trial of an issue, for the reasons outlined above.

42In my view, the question of whether Sandra should be granted leave pursuant to paragraph 6 of s.42(4) of the S.D.A. , and corresponding standing to seek her desired “passing of accounts” order in relation to Mark, therefore should form part of the balance of the application which should be adjourned to be disposed of by the trial judge pursuant to Rule 38.10(3) of the Rules of Civil Procedure, once it has been determined whether Mark was granted power of attorney for property authority in the prevailing underlying circumstances, and acted pursuant to that authority in relation to his mother’s property.

43All concerned nevertheless indicated their agreement, during the hearing before me, that such standing should be granted in the event the court determines that Mark was granted power of attorney for property authority in the prevailing underlying circumstances, and acted pursuant to that authority in relation to his mother’s property.

Requests for Orders Compelling Passing of Accounts

Requests for Orders Compelling Passing of Accounts

44As noted above, the relief sought by Sandra included a request for orders compelling each of the named respondents to pass “attorney for property” accounts; i.e., Susan in her personal capacity, and Connie as the representative of Mark’s estate.

45More specifically, Sandra requested an order compelling each respondent to pass such accounts for the period starting on January 1, 2012, and ending on September 6, 2019.

46As noted above, I intend to grant the requested order in relation to Susan, and do so for reasons that include the following:

a. As noted above, the court clearly has discretionary authority, pursuant to s.42(1) of the S.D.A. , to order “that all or a specified part of the accounts of an attorney … of property be passed”.

b. No one, including Susan, disputes that Susan definitely was appointed an attorney for property pursuant to the Continuing Power of Attorney for Property executed by Mary, or that Susan definitely then acted pursuant to that authority in relation to her mother’s property.

c. Susan does not oppose the requested order compelling her to pass her accounts, and there is no suggestion that she is incapable of passing her accounts. To the contrary, as noted above, Susan has been making preparations in that regard by retaining appropriate professionals to provide her with assistance if and as necessary. Indeed, Susan appears to welcome an opportunity to pass her accounts, which will not only provide her with an opportunity to claim any attorney compensation to which she may be entitled, but also facilitate her formal discharge as an attorney for property, pursuant to section 42 of the S.D.A .

47For reasons that should be obvious at this point, I nevertheless decline to make, at this stage of the proceedings, a similar order in relation to Connie as representative of Mark’s estate. Such an order would be premature, unless and until the court makes a determination that Mark was granted power of attorney authority by his mother Mary in the prevailing underlying circumstances, and acted pursuant to that authority in relation to his mother’s property.

Order Directing Trial of an Issue

Order Directing Trial of an Issue

48For the reasons outlined herein, I think it appropriate to direct the trial of issues pursuant to Rule 38.10(1)(b) of the Rules of Civil Procedure.

49In particular, I will make an order directing that the following issues shall proceed to trial:

a. In the circumstances which prevailed prior to the death of Mary Powers, was Mark Van Ruymbeke granted power of attorney for property authority in relation to his mother’s property?

b. If the answer to that first issue is “yes”, did Mark Van Ruymbeke act pursuant to that power of attorney for property authority in relation to his mother’s property?

50After receiving submissions from the parties, I also give the following further directions in that regard, pursuant to Rule 38.10(1)(b) and Rule 38.10(3) of the Rules of Civil Procedure:

a. The parties participating in trial of the aforesaid issues, and their respective roles in that regard, shall be as follows:

i. Sandra shall act as plaintiff, seeking affirmative answers from the court in relation to the issues to be tried; and

ii. Connie shall act as defendant, seeking negative answers from the court in relation to the issues to be tried.

b. The trial of the aforesaid issues shall proceed as an action, with the parties thereto and any affected non-parties having all rights and obligations prescribed by the Rules of Civil Procedure in relation to an action, including but not limited to the rules therein governing the exchange of pleadings, documentary discovery, oral discovery examinations, and the obtaining of evidence from non-parties.

c. The balance of the application shall be adjourned to be disposed of by the trial judge after trial and determination of the aforesaid issues, with that balance of the application to include:

i. determination of Sandra’s request for an order recognizing the applicant’s standing, and granting leave in that regard if necessary, to seek an order compelling Connie to pass accounts on behalf of Mark as attorney for property for Mary, having regard to the parties’ agreement that such standing should be recognized and/or leave granted if the issues to be tried are answered in the affirmative;

ii. determination of Sandra’s request for an order compelling Connie to pass accounts on behalf of Mark as attorney for property for Mary, (including determination of whether that request is barred by any applicable limitation period, and whether the court should exercise its discretion in favour of making such an order), having regard to considerations including but not limited to Connie’s undertaking not to seek any compensation for any actions Mark may have taken as an attorney for property for Mary, if Mark is found to have acted in that capacity; and

iii. determination of costs of the application herein, including costs of the proceedings before me, costs of the trial of the issues, and costs of the remaining proceedings before the trial judge, but not including Susan’s costs of the application, which shall be reserved to the judge substantively hearing and determining Susan’s application to pass accounts.

51The Order I have finalized and signed, at the same time as this endorsement, incorporates those additional provisions in a more formal manner.

Justice I.F. Leach

Date: February 21, 2023

1In the course of submissions, Mr Rhodes noted that he also has filed a notice of appearance on behalf of Aimee Henry and Scott Van Ruymbeke, (the adult children of Mark Marshall Peter Van Ruymbeke), as individuals who have not been named as parties in the proceeding but who nevertheless are interested in this litigation; i.e., because they have initiated proceedings to set aside the putative will of their father, and therefore have a contingent interest in matters possibly affecting their father’s estate.

2Intending no disrespect, but for the sake of simplicity, (as a number of the those involved share the same surname but all have unique first names), I hereafter will refer to members of the family by their first names after indicating their full names.

3The relevant language of appointment is found in Paragraph II of the document, and reads as follows: “I appoint my daughter SANDRA WALLIS and my daughter SUSAN SALENBIEN and my son MARK VANRUYMBEKE to be the Executors and Trustees of this my Will and I hereinafter refer to them as my trustees.” Although the relevant last will and testament refers to “Sandra Willis” rather than “Sandra Van Ruymbeke”, (as Mary mistakenly believed that her daughter Sandra had taken her husband’s surname upon marriage), there apparently was and is no dispute that both names refer to one and the same person; i.e., the applicant herein.

4I prefer these descriptions to the varying, less precise, somewhat ambiguous and therefore potentially confusing references in the applicant’s material to “the Farm Lands”, (apparently intended as a reference to the King’s Bridge Farm and the Mason Line Farm collectively), “the Farm Residence”, (apparently intended as a reference to a residential home situated on the Mason Line Farm), “the Farm”, (apparently intended as a reference to the King’s Bridge Farm and the Mason Line Farm collectively), “my mother’s Farm”, (apparently intended as a reference to the Mason Line Farm), “my stepfather’s farm”, (apparently intended as a reference to the King’s Bridge Farm), “my mother’s land”, (apparently intended as a reference to the King’s Bridge Farm and the Mason Line Farm collectively), and “the land”, (apparently intended as a reference to the King’s Bridge Farm and the Mason Line Farm collectively). In my view, references to “the Farm” are potentially confusing insofar as use of a singular term obscures an intended reference to what is actually more than one farm property, and references to “my mother’s farm” and “my stepfather’s farm” are potentially confusing as there apparently is no dispute that Mary owned both the King’s Bridge Farm and the Mason Line Farm at the time of her death.

5In her initial affidavit sworn on May 31, 2022, Sandra indicated that the farm properties owned by her mother Mary comprise approximately 117 acres. In her subsequent affidavit sworn on November 24, 2022, Sandra revised that estimate to 120 acres, based on evaluation documents from the Municipal Property Assessment Corporation (“MPAC”).

6In her affidavit material, Sandra seems to refer to rental income generated by the King’s Bridge Farm as something separate and distinct from any payments made by or deposits received from Mark in relation to the farm properties. However, she also includes a copy of a formal lease agreement, executed in December of 2008 by Mary Powers as “lessor” and by a gentleman named Brad Martin from the town of Dresden as “lessee”, which may relate to both the King’s Bridge Farm and the Mason Line Farm. In particular, that one lease agreement refers to two separate farm properties; i.e., one consisting of approximately 50 acres and the other consisting of approximately 68 acres, (for a combined acreage of approximately 118 acres, which is obviously quite similar to the combined acreage of the King’s Bridge Farm and Mason Line Farm indicated in Sandra’s application material), with both being located “in the municipality of Chatham Kent”. Moreover, one of the leased farms was said to be located on the “corner of Mason and Kent Road 15, with a partial formal legal description, (i.e., part of Lot 1, Concession 3, in the municipality of Chatham-Kent), matching one of the two formal legal descriptions set forth in the application material. Having said that, the other partial formal legal description set forth in the lease, (i.e., part of Lot 8, Concession 3), does not match the other formal legal description set forth in the application material. In any event, the lease agreement between Mary and Mr Martin allowed the latter to farm the specified land “for the 2009 crop season”, in exchange for full payment of a specified rent to Mary by December 30, 2009.

7In her affidavit material, Connie indicates that David is the husband of Susan Salenbien, and therefore a son-in-law to Mary.

8The extent to which Mary suffered from further disabling conditions, and the nature of those conditions, apparently is a matter of dispute. For example:

• In her affidavit material, Sandra asserts that her mother Mary was diagnosed with dementia prior to her heart attack and ensuing hospitalization, and that the previous diagnosis of dementia was “reconfirmed” and specifically characterized at the hospital as “moderate to severe Alzheimer’s” disease.

• In her affidavit material, Connie asserts that, based on her discussions with Mary’s physiotherapist while Mary was residing at Riverview Gardens, Mary had suffered two broken arms and had been diagnosed as suffering from “social dementia”, but did not have Alzheimer’s disease.

• In her affidavit material, Susan indicates that her mother suffered from what Susan believed to be “Alzheimer’s and Dementia”.

9See the affidavit sworn by Sandra on May 31, 2022, at paragraph 12.

10Ibid., at paragraph 10. This s uggests that Susan also exercised control over Mary’s bank accounts, which would include the accounts into which funds paid by Mark to his mother were deposited. See Sandra’s affidavit, sworn May 31, 2022, at paragraph 14.

11Ibid., at paragraphs 10, 18 and 19.

12Ibid., at paragraph 30.

13See, for example: Sandra’s affidavit sworn on May 31, 2022, at paragraphs 12, 15 and 16; Connie’s affidavit sworn August 23, 2022, at paragraph 16, and Susan’s affidavit sworn November 10, 2022, at paragraphs 9, 10, 11, 12, 13, 17, 19, 20 and 21.

14See, for example: the affidavit sworn by Sandra on May 31, 2022, at paragraph 13; and the affidavit sworn by Connie on August 23, 2022, at paragraph 10.

15See, for example, the affidavit sworn by Sandra on May 31, 2022, at paragraph 14.

16For example, in her affidavit sworn on May 31, 2022:

• Sandra says, in paragraph 11, that after Mary’s diagnosis in 2012, “Mark and Susan began acting as my mother’s Attorney for Property in accordance with my mother’s Continuing Power of Attorney for Property signed on June 11, 2010”.

• Sandra says, in paragraph 16, that Mark owes Mary’s estate further money because he farmed the farm properties, owned by Mary, “while acting as her Attorney for Property”.

• Sandra says, in paragraph 17, that Mark and Susan never passed their accounts “while acting as my mother’s Attorneys for Property”.

17See, for example, Connie’s affidavit sworn on August 23, 2022, at paragraphs 3, 4, 7, 11, 12, 15 and 17.

18The original appointment wording in the relevant Continuing Power of Attorney for Property executed by Mary refers to the appointment of “Susan Salenbien or Dave Salenbien or Mark Van Ruymbeke”; the conjunction “or” was capitalized in the material filed by Connie for purposes of emphasis.

19Ibid., at paragraph 3.

20Ibid., at paragraphs 3, 15 and 16.

21Ibid., at paragraphs 15 and 16.

22Ibid., at paragraph 11.

23Ibid., at paragraph 10.

24See Connie’s supplementary affidavit, sworn on January 9, 2023.

25See the affidavit sworn by Susan on November 10, 2022, at paragraphs 3 and 6.

26Ibid., at paragraph 10. Again, this suggests that Susan also exercised control over Mary’s bank accounts, which would include the accounts into which funds paid by Mark to his mother were deposited. See Sandra’s affidavit, sworn May 31, 2022, at paragraph 14.

27Ibid., at paragraphs 10, 18 and 19.

28Ibid., at paragraph 30.

29Ibid., at paragraphs 9, 12, 17 and 21.

30Ibid., at paragraphs 8, 17 and 21.

31As an aside, but an important one, it seems to me that there may very well be a fundamental conflict between the interests of Susan on the one hand, and Aimee and Scott on the other, that would prevent Mr Rhodes from continuing to act for all three of those parties as this estate litigation continues. In particular:

• As noted above, Susan is a residuary beneficiary of Mary’s estate. Susan accordingly has an interest in promoting an outcome which maximizes the residual assets of that estate, which would include any sums that Mary’s estate might be able to recover from Mark’s estate; e.g., based on arguments that Mark abused authority conferred upon him by the Continuing Power of Attorney for Property executed by Mary, or committed some other wrong vis-à-vis Mary and/or her Mary’s estate. Any such recovery by Mary’s estate obviously would diminish Mark’s estate.

• Aimee and Scott, on the other hand, as litigants in separate proceedings formally pursuing an entitlement to share in their father Mark’s estate, may very well have an interest in promoting an outcome which maximizes the assets in Mark’s estate; e.g., by minimizing or defeating altogether any claims against their father’s estate by the estate of Mary, their paternal grandmother. In that regard, I note that Aimee and Scott appear to have no countervailing interest whatsoever, either direct or indirect, in augmenting the residual assets of Mary’s estate. (For example, they do not appear to be named beneficiaries in Mary’s will, so as to share in her estate directly. Nor do they appear to have any further indirect interest in Mary’s estate once the farm properties have been transferred to Mark’s estate, as their father Mark apparently was to receive only that specific bequest of the farm properties from Mary’s estate, following which he was not to share in Mary’s estate residue.)

• In my view, it accordingly would be inappropriate, in such circumstances, for the same lawyer to continue representing Susan, (in relation to any efforts by her to support claims by Mary’s estate against Mark’s estate), while simultaneously representing Aimee and Scott, (in relation to any efforts by them to share in Mark’s estate, if they have an interest in the assets of that estate being maximized).

32See, for example, Zimmerman v. McMichael Estate, 2010 ONSC 2947, at paragraphs 31-32 , and the authorities cited therein.

33See, for example, s.32(6) of the S.D.A. , expressly requiring an attorney for property to keep accounts of all transactions involving the grantor’s property, s.2(1) of O.Reg. 100/96, setting forth mandatory components of the accounts to be maintained by such an attorney for property, (including lists of all assets initially received, all subsequent asset acquisition and disposal, all monetary payments received or paid on behalf of the grantor, and of all compensation taken), and s.6(1) of the same regulation requiring an attorney for property to retain such accounts and records until he or she has ceased to have authority and has been formally discharged by the court on a passing of accounts pursuant to section 42 of the S.D.A..

34The relevant portions of s.42(1) of the S.D.A. read as follows: “The court may , on application, order that all or a specified part of the accounts of an attorney…of property be passed”. [Emphasis added.]

35See, for example: Ali v. Fruci, [2006] O.J. No. 1093 (S.C.J.); and Greaves v. Nigro Estate, 2016 ONSC 44, at paragraphs 52 and 53 .

36Again, see s.42(1) of the S.D.A.

37See, for example: McAllister Estate v. Hudgin (2008), 42 E.T.R. (3d) 313 (Ont.S.C.J.), at paragraph 13 ; Lacroix v. Kalman, 2015 ONSC 19, at paragraphs 32 and 40 ; and Dzelme v. Dzelme, 2018 ONCA 1018, at paragraph 7 .

38See Lehtonen v. Neill, 2013 ONSC 1497, at paragraph 8 .

39It was not disputed that Susan admittedly began exercising the power of attorney for property, granted by Mary, in January of 2012, and that Susan’s exercise of that authority came to an end with Mary’s death on September 6, 2019.

40Subsection 38(1) refers to claims, (apart from defamation claims), “for all torts or injuries to the person or to the property” of a deceased person. That language is broad, and our Court of Appeal has held that it covers claims in tort, contract and breach of fiduciary duty. See Lafrance Estate v. Canada (Attorney General) (2003), 64 O.R. (3d) 1 (C.A.).

41See, in particular: Waschkowski v. Hopkinson Estate (2000), 47 O.R. (3d) 370 (C.A.); and Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53.

42See, respectively: Armitage v. The Salvation Army, 2016 ONCA 911, at paragraphs 19 and 23-29 ; and Wall v. Shaw, 2018 ONCA 929, at paragraphs 1-2 , 21-22, 28-29 and 33-37.