Barltrop v. Bensette et al., 2012 ONSC 2196

COURT FILE NO.: 1167/10

DATE: 2012-05-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIAN BARLTROP (Applicant) – and – CATHERINE BENSETTE, MARGARET BAKER, JOSEPH BAKER, ROBERT BAKER, and THE PUBLIC GUARDIAN AND TRUSTEE (Respondents)

BEFORE: JUSTICE A.W. BRYANT

COUNSEL: Michael A. Menear, for the Applicant

J. Douglas Skinner, for the Respondents

HEARD: February 29, 2012, March 1 and 2, 2012

ENDORSEMENT

I. Introduction

[ 1 ] Ethel Cecile Baker named Catherine Bensette as her executrix and trustee. On September 9, 2005, Justice Morissette found that Ethel Baker was incapable pursuant to s. 45 of the Substitute Decisions Act , 1992, S.O. 1992, c. 30 (“ S.D.A. ”) and that it was necessary for decisions to be made on her behalf by a person authorized to do so.

[ 2 ] The appointment of the guardian for property and guardian for personal care of Ethel Baker was bitterly contested by family members. Robert Baker sought to be appointed guardian for property and guardian for personal care of his mother Ethel Baker. Marian Barltrop sought to be appointed the guardian for property of her mother Ethel Baker. Catherine Bensette sought to be appointed as guardian for personal care of her mother Ethel Baker.

[ 3 ] Morissette J. appointed Marian Barltrop as guardian of property for Ethel Baker and ordered Ms. Barltrop to manage her property “in accordance with the management plan sworn August 26, 2005” without posting security. The Management Plan attempts to anticipate the type of expenses that the guardian for property was expected to incur including legal costs. On September 9, 2005, Morissette J. appointed Catherine Bensette as guardian of the person of Ethel Baker.

[ 4 ] In her reasons, Morissette J. stated that the history of this litigation was truly a sad one. Her Honour advised family members that further litigation would needlessly deplete the assets of the estate contrary to the intention of their parents. Notwithstanding these words of caution about the consequences of additional litigation, the administration of the estate is again before this Court in relation to the passing of accounts.

[ 5 ] On September 28, 2007, Ms. Barltrop provided an informal summary report of Ethel Baker’s finances to family members. Ethel Baker died on November 18, 2008. On November 3, 2008, Ms. Barltrop provided a written summary of the bank accounts (Exhibit 18).

[ 6 ] Robert Baker applied for an order requiring Ms. Barltrop to pass the accounts of the estate. On January 19, 2010, Gorman J. ordered Marian Barltrop to prepare and pass accounts of the estate as guardian for property for the period from September 9, 2005, to November 18, 2008, when Ethel Baker died.

[ 7 ] Counsel for the applicant in his written argument provided a chronology of Mr. Baker’s objections and Ms. Barltrop’s responses. Marian Barltrop filed her accounts with the court on May 4, 2010, when the proceedings commenced. The respondent Robert Baker filed a notice of objection, dated June 8, 2010, containing 25 objections. The applicant responded by solicitor’s letter dated July 5, 2010. These documents are filed in document brief #1 and #2. The respondent’s solicitor’s letter, dated November 2, 2010, raised 56 further objections. The applicant’s solicitor’s letter dated December 16, 2010, responded. These documents are filed in document brief #3. The respondent’s solicitor’s letter dated July 29, 2011 raised 52 further objections and made further requests. The applicant’s solicitor’s letter dated October 17, 2011, responded to the objections and requests.

II. The Statutory Framework

[ 8 ] The S.D.A. sets out the duty and authority of the guardian for property. A guardian for property has power to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will ( s. 31(1) ). The guardian’s powers are subject to the S.D.A. and to any conditions imposed by a court (s. 31(3)). A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit (s. 32(1)).

[ 9 ] If the guardian’s decision will have an effect on the incapable person’s personal comfort or well-being, the guardian shall consider that effect in determining whether the decision is for the incapable person’s benefit (s.32 (1.1)). A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has the authority to make those decisions (s. 32(2.1)). The guardian shall consult from time to time with supportive family members and friends of the incapable person who are in regular personal contact with the incapable person and the person from whom the incapable person receives personal care (s. 32(5)).

[ 10 ] A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property (s. 32(6)). A guardian who does not receive compensation for managing the property shall exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs (s. 32(7)). A guardian shall act in accordance with the management plan established for the property, if the guardian is not the Public Guardian and Trustee, or in accordance with the policies of the Public Guardian and Trustee (32(10)).

[ 11 ] A guardian of property is liable for damages resulting from a breach of the guardian’s duty (s. 33(1)). If the court is satisfied that a guardian of property who has committed a breach of duty has nevertheless acted honestly, reasonably and diligently, it may relieve the guardian from all or part of the liability (s. 33(2)).

III. The Hearing

[ 12 ] The hearing commenced on February 29, 2012, and continued on March 1 and 2, 2012. Ms. Barltrop filed records that she maintained during her tenure as guardian for property showing the payments made on behalf of her mother. Ms. Barltrop is neither an accountant nor a lawyer but is a lay person ordered by the court to carry out her duties as a guardian for property.

[ 13 ] Ms. Barltrop testified and was cross-examined at length by counsel for the objector. Ms. Barltrop answered the questions asked in chief and cross-examination and explained the payments she made and why she made them. She conceded in cross-examination when it was shown that she had made an error, for example when there was a duplicate payment, and readily agreed that an adjustment should be made. There was no suggestion in the evidence that Ms. Baltrop was deceitful or intentionally depleted the estate’s assets for her own personal gain during her tenure as guardian for property.

[ 14 ] Ms. Barltrop was the sole witness called at the hearing. Mr. Baker did not testify or call other witnesses in support of his objections.

IV. The Objections Raised

[ 15 ] Counsel filed written submissions at the conclusion of the evidence in relation to the objections raised by Mr. Baker at the hearing. I will deal seriatim with the significant issues raised in the written submissions by counsel for Mr. Baker.

1. Objection: Chelsey Park Records

[ 16 ] Ethel Baker lived at the Chelsey Park Retirement community in London. The applicant made five payments totalling $3,000 to the Chelsey Park Fund for the period October 2005 to November 2007. She testified that her mother used these funds for personal expenses such as clothing, a comforter, meals with friends and relatives, and similar purchases that were not provided under the residency contract. The applicant received a Chelsey Park financial statement a couple of times a year showing the list of expenditures made from Ethel Baker’s Chelsey Park Fund. She reviewed the Chelsey Park statements upon receipt showing the purchases or expenditures from the account and determined if expenditures were properly spent for the benefit of her mother. Ms. Barltrop would then issue a fresh cheque to refresh her mother’s Chelsey Park Fund account. Although Ms. Barltrop recorded the payment to her mother’s Chelsey Park Fund, she did not retain the Chelsey Park statements.

[ 17 ] The respondent requested the applicant to produce copies of the Chelsey Park statements. Ms. Barltrop made an inquiry to Chelsey Park to obtain a copy of the statements relating to her mother. The retirement home told Ms. Barltrop that there was a $350 retrieval fee. The applicant advised Mr. Baker that she would obtain the Chelsey Park statements for Ethel Baker’s account if Mr. Baker advanced $350 for their retrieval. Mr. Baker did not advance $350 to retrieve a copy of the Chelsey Park statements.

[ 18 ] Counsel for the objector submitted that the failure to produce the statements constituted a dereliction of the applicant’s duties. I disagree. Ms. Barltrop maintained a record of the payments she made to the Chelsey Park Fund for her mother. The applicant’s records show the amount paid to Chelsey Park and when it was paid. Ms. Barltrop testified that when she received the statements she reviewed them and was satisfied that the monies were used for the benefit of her mother. Ms. Barltrop’s records show each transaction and she provided an explanation how her mother utilized the money deposited in her Chelsey Park Fund account.

[ 19 ] Ms. Barltrop determined that an expenditure of $350 was unnecessary in the circumstances. I find these funds were paid to the Chelsey Park Fund for the benefit of Ethel Baker and Ms. Barltrop maintained accounts recording these transactions in accordance with s. 32(6) of the S.D.A .

2. Objection: Duplicate Payment of Accounts and Overpayment of Ms. Bensette’s Loan Interest

[ 20 ] Ms. Barltrop acknowledged that she erroneously made duplicate payments for expenses relating to transactions recorded in her “Further Amended Guardian’s Report” dated October 17, 2011. These were: (1) a claim for $293.22 for “clothing, shoes and personal care items purchased for Ethel Baker”; and, (2) a train ticket for $102.72.

[ 21 ] Ms. Barltrop readily acknowledged these errors during cross-examination when counsel for the objector identified the two duplicate payments as set out in the Further Amended Guardian’s Report. I find that these duplicate payments were not knowingly made for her financial gain or benefit but were simply bookkeeping errors. I find these duplicate payments were an oversight and do not constitute a breach of Marian Barltrop’s fiduciary duty. The guardian and her counsel agree there were duplicate payments for the same expenditure. Accordingly, I reduce her compensation in the amount of $395.94 for these duplicate payments.

[ 22 ] Ms. Bensette borrowed money to retain lawyers with respect to the personal care of her mother. Morissette J. awarded costs for Ms. Bensette in the amount of $45,412.96. Catherine Bensette claimed reimbursement of the loan and associated interest and insurance costs. Counsel for the respondent submits that no representations were made before Morissette J. to claim these costs at the December 2005 cost hearing. Counsel further submits that Ms. Barltrop should not have reimbursed Catherine Bensette for interest and insurance costs on the loan. Counsel argues that Ms. Barltrop arbitrarily increased the cost award made by Morissette J. on January 23, 2006.

[ 23 ] I find that Ms. Bensette’s decision to retain a lawyer was made for her mother’s benefit ( s.32(1.1) S.D.A. ) and Ms. Barltrop’s decision to reimburse her for these costs was proper.

[ 24 ] Ms. Barltrop reimbursed Ms. Bensette $807.65 for interest charges on the unpaid account. However, Ms. Bensette incurred interest and insurance costs in the amount of $576.59 (Exhibit 2, Tab P) in relation to the loan. Ms. Barltrop acknowledged that there was an overpayment of $231.06 for interest on the unpaid account. Ms. Barltrop first recognized the overpayment of interest when counsel for the objector brought this matter to her attention during cross-examination.

[ 25 ] Ms. Barltrop wishes to pay the estate $231.06 for the overpayment of interest paid to the guardian for the person. Accordingly, I reduce her compensation by $231.06.

[ 26 ] I find that the duplicate payments and the overpayment were patent bookkeeping errors and were not a breach of the duty Ms. Barltrop owed to her mother.

3. Objection: Reconciliation of the Guardian for Property and Estate Trustee Accounts

[ 27 ] The applicant, Ms. Barltrop, was appointed as guardian for property on September 9, 2005, and continued as such until her mother’s death on November 18, 2008. On November 18, 2008, Catherine Bensette took responsibility for the assets of her mother’s estate as estate trustee under the last Will and Testament of Ethel Cecile Baker, dated August 3, 2003.

[ 28 ] The applicant, Ms. Barltrop, was required to pass accounts for the period September 9, 2005, to November 18, 2008, pursuant to the order of Gorman J. dated January 18, 2010. Ms. Barltrop’s accounts and all transactions are set out in the Further Amended Guardian’s Report, dated October 17, 2011.

[ 29 ] Counsel for the respondent Robert Baker stated that there was a discrepancy between the closing balance of the guardian’s report ($261,014.95) and the opening balance of the estate trustee’s account ($289, 083.68). Counsel submitted that the closing balance of the guardian for property should be exactly the same as the opening balance of the estate trustee since the two events occurred on the same day. Counsel argued there was a difference of $28,068.73 between the guardian for property and the estate trustee’s accounts which was unaccounted.

[ 30 ] In cross-examination, Ms. Barltrop explained that there were two payments totalling $25,000 that transferred funds from the account of the guardian for property to the estate trustee for the following reasons. Marian Barltrop planned to take a trip. On September 2008, she transferred $10,000 to Ms. Bensette, the guardian for personal care, in anticipation of the needs of Ethel Baker whose health was deteriorating. A second transfer of $15,000 was made to Ms. Bensette on November 14, 2008, in anticipation of her mother’s death as Ms. Barltrop believed that Ms. Bensette, the estate trustee, would need funds to pay funeral and other expenses. Ethel Baker died four days later on November 18, 2008.

[ 31 ] The Further Amended Report of the Guardian for Property (October 17, 2011) identifies transfer payments to the estate trustee. The opening balance of the estate trustee’s summary (Document Brief 1 - Tab 21) shows the receipt by the estate trustee of $25,000.00 on November 14, 2008. The November 14, 2008, entry shows “bank old #6307755 TD Bank” from which the monies were received from the guardian for property and “new 108526H78A” where the estate funds were held. There was also a funeral home refund payable to the estate in the amount of $4,408.47, which was not an asset under the control of the guardian for property, together with other minor payments and transactions. These records confirm Ms. Barltrop’s evidence.

[ 32 ] The reconciliation of the opening balance of the estate trustee's account and the closing balance of the guardian for property’s account explain the transactions and the differences in the balances of the two accounts (Exhibit 20). The respondent’s submission that there was an unaccounted discrepancy between the opening balance of the estate trustee's account and the closing balance of the guardian for property account is wrong.

4. Objection: Morissette J.’s Cost Award

[ 33 ] Morissette J. deferred ruling on costs at the conclusion of the trial to allow the parties an opportunity to resolve the matter of costs. The parties were unable to reach an agreement and appeared before Her Honour. The parties argued costs on December 16, 2006, and Morissette J. awarded costs on January 23, 2006.

[ 34 ] Counsel for the respondent submits that McKenzie Lake, as counsel for Ms. Barltrop and for Ms. Bensette, requested costs for counsel fee in the amount of $1,500 x 2 for preparation and appearances before Her Honour on December 16, 2005. Counsel submits that the cost outline (Exhibit 23) filed by McKenzie Lake was dealt with at the cost hearing before Morissette J. which she did not grant.

[ 35 ] Counsel for the guardian submits that McKenzie Lake’s costs for the appearance of December 16, 2005, were not dealt with by Morissette J. In her decision released on January 23, 2006, Her Honour approved the bill of costs produced for Marian Barltrop in the amount of $42,718.22 and Catherine Bensette in the amount of $45,412.92.

[ 36 ] A review of the cost outline shows that four McKenzie Lake accounts for Ms. Barltrop were issued on November 14, 2004, March 5, 2005, May 12, 2005, and September 23, 2005, for a net amount of $42,718.22. There were two McKenzie Lake accounts for Catherine Bensette issued on May 15, 2005, and September 23, 2005, for $45,412.92. Thus, Morissette J.’s order awarded costs to the guardians for these six invoices and she did not deal with costs for the December 16, 2005, cost arguments.

[ 37 ] I find that Morissette J. did not deal with the McKenzie Lake bill, dated December 28, 2005, in the amount of $2,527.15 for Ms. Bensette and $5,602.86 for Ms. Barltrop as these accounts were first rendered 11 days after costs were argued on December 16, 2005.

[ 38 ] I reject Mr. Baker’s position that the reimbursement payments for costs incurred for the December 16 appearance were improper. In my view, Ms. Barltrop and Ms. Bensette retained counsel to protect their mother’s interest. The retainer included McKenzie Lake’s attendance on December 16, 2005.

[ 39 ] In a letter dated January 25, 2006, Mr. Bennett of McKenzie Lake wrote to Ms. Bensette and Ms. Barltrop as follows:

Pursuant to the Order of Justice Morissette with respect to costs (which costs award followed the costs submissions before Justice Morissette on December 16, 2005), you can each reimburse yourself for legal costs that you incurred. I would also suggest that it is appropriate for you to also reimburse your legal costs that relate to our appearance before Justice Morissette to argue the issue of costs. Any legal costs which you incur from this point forward for the purposes of conducting your duties and responsibilities as Guardian can be properly reimbursed to you from the Estate. These expenses will, of course, form part of the accounting which will have to be done at a future date.

[ 40 ] Neither Ms. Barltrop nor Ms. Bensette was a lawyer. They retained counsel to assist them. The Court finds that the advice given to Ms. Barltrop by McKenzie Lake in the January 25, 2006, letter was appropriate in the circumstances and that the guardians should be reimbursed for all legal accounts incurred for the purpose of performing their duties on behalf of Ethel Baker.

5. Objection: Interest on Ms. Barltrop’s Loan to pay Counsel

[ 41 ] Marian Barltrop retained solicitors to represent her on her application to be appointed guardian of property. Ms. Barltrop borrowed money to pay her solicitor. Morissette J. appointed Marian Barltrop as the guardian of property and Catherine Bensette as guardian of personal care.

[ 42 ] Counsel for Robert Baker submits that Marian Barltrop should not be reimbursed for interest charges for the purpose of paying lawyer fees since none of the other parties received a similar benefit. This submission is rejected. First, Margaret Baker and Catherine Bensette filed consents to the passing of accounts and Joseph Baker did not file an answer. Second, in a letter dated November 3, 2008, to her siblings, Ms. Barltrop confirmed that she had offered to reimburse Mr. Baker for his expenses but he did not respond and requested him to forward any claims to her by November 20, 2008.

[ 43 ] Ms. Barltrop borrowed money to retain and pay a lawyer to assist her. There was a genuine concern about the suitability of Robert Baker to properly manage the estate of their mother and to provide personal care for their mother. As Morissette J. stated: “Marian has demonstrated she has done an incredible job so far, notwithstanding the impediments provided by her brothers including her father, initially.” The Court finds Ms. Barltrop’s decision to retain a lawyer was made for her mother’s benefit ( s.32 (1.1) S.D.A ).

[ 44 ] Counsel for the respondent Mr. Baker submits that the matter of interest on the loan was not argued before Morissette J. when she considered the matter of costs. Counsel argued that Her Honour fixed costs and that Ms. Barltrop has improperly increased the cost award fixed by the court. Since the matter of interest on the loan to retain legal counsel was not a matter before Morissette J., she could not have considered interest in the costs submissions.

[ 45 ] Ms. Barltrop and Mr. Baker had co-power of attorney for property for Ethel Baker. In the Management Plan, Ms. Barltrop asserts that the estate was indebted to her due to Mr. Baker’s lack of co-operation. She used her line of credit to retain legal services to secure her appointment as guardian of property for her mother and to pay the estate’s indebtedness. In my view, it is proper for this court to consider whether interest was incurred for the benefit of her mother.

[ 46 ] The amount of the loan was $46,500. The McKenzie Lake account for legal services was $42,840.74. Ms. Barltrop acknowledged during cross-examination that she received an interest payment on the full amount of the loan. Counsel for Mr. Baker calculated the difference between the loan and the solicitor’s account for legal services as $46,500 - $42,840.74 = $3,659.26. Counsel for Mr. Baker submits that the estate of Ethel Baker should not pay interest relating to the excess loan amount of $3,659.26.

[ 47 ] The excess loan amount of $3,659.26 was not a benefit to Ethel Baker. Counsel for the respondent submitted that the interest relating to $3,659.00 was $102.85. Accordingly, Ms. Barltrop should not have been reimbursed interest on this portion of the loan and this sum shall be reduced from her compensation.

6. Objection: Care for Mother

[ 48 ] Ethel Baker returned to London and lived with Catherine Bensette for a 10 day period. Marian Barltrop paid Catherine Bensette $8,995.42 for the care.

[ 49 ] Ms. Bensette provided round the clock care for her mother who was very ill. She claimed $15.00 per hour for 15 waking hours and $5.00 per hour for night hours for $2,700. She claimed $115 for meals and $712 for adjustment to her work schedule and searching for a suitable retirement home for her mother. Ms. Bensette claimed $2,580 for daily calls, shopping for her mother and attendances on her mother at the rate of 5 hours per week for 43 weeks. Ms. Bensette claimed $300 for long distance telephone calls to her mother when she resided in Windsor. She purchased clothing and shoes for her mother because when she arrived in London she lacked clothes and shoes and purchased drugs not covered by insurance (see Exhibit 2, Tab M). The total amount claimed was $8,995.42.

[ 50 ] Counsel for the respondent submits that Ms. Bensette should not be compensated because a daughter should provide comfort and care for her mother without compensation. The uncontradicted evidence is that neither Joseph nor Robert Baker visited regularly and did not provide care for their mother during this period. Counsel alternatively submits that Morissette J. did not approve the expenses but left these claims for the determination of the judge presiding over the passing of accounts. Counsel relies upon passages from transcripts of the proceedings (Exhibit 21 (pp. 91-92); Exhibit 22 (pp. 12-13)) in which counsel made submissions before Morissette J. about what issues were to be determined by the court in the guardian proceedings.

[ 51 ] Master Nolan’s order, dated April 6, 2004, requires the co-attorneys Robert Baker and Ms. Barltrop to pay Catherine Bensette appropriate sums to reimburse her for expenses personally incurred for the benefit of Ethel Baker (Exhibit #6 – Tab B).

[ 52 ] The Management Plan recognized an outstanding debt of $8,470 owed to C. Bensette (Exhibit #6 – Tab 11). Morissette J. approved the Management Plan, sworn August 26, 2005, which recognized a liability of $8,470 owed to C. Bensette. Morissette J.’s guardian order, dated September 9, 2005, states: “This court orders that Marian Barltrop shall manage the property of Ethel Cecile Baker in accordance with the management plan sworn August 26, 2005, without the requirement of posting security”. The Management Plan noted that the accrued debt had not been paid due to the lack of co-operation of Robert Baker as co-power of attorney for property.

[ 53 ] Ms. Barltrop testified that she believed she was empowered under the Management Plan to pay Catherine Bensette this indebtedness. I find that Ms. Barltrop had reasonable grounds for her belief that she was authorized to pay these debts.

[ 54 ] The Court has reviewed the documentary evidence filed which includes copies of the invoices, the type of expenses and the amount paid. Ms. Barltrop paid the guardian for personal care $8,995.43. The Court finds that these claims were made for the personal comfort and well-being of Ethel Baker and were rendered for the benefit of Ethel Baker. The payment of $8,995.42 to Ms. Bensette was reasonable compensation in the circumstances.

7. Objection: Marian Barltrop Charges for Meeting with Lawyer

[ 55 ] Counsel for the respondent Mr. Baker submits that Ms. Barltrop should not be reimbursed for travel, meals and related expenses when she travelled to Windsor or London for meetings in relation to her duties as co-attorney for property and as guardian for property. Counsel submits that no receipts were produced for the meal and mileage expenses.

[ 56 ] Ms. Barltrop travelled to Windsor to meet with a bank representative and Mr. Deluca, a lawyer. Ms. Barltrop reimbursed herself for mileage at the rate of 38 cents per kilometer and $40.00 for meals for a day visit to Windsor and $20 for meals in London. Ms. Barltrop identified the purposes of these trips (Exhibit 2, Tab O) and was cross-examined on the purposes of these trips.

[ 57 ] Ms. Barltrop testified that family members entered into a mediation agreement on December 11, 2004. Master Nolan’s order, dated April 6, 2004, adopted the mediation agreement and stated that Marion Barltrop and Robert Baker shall continue to exercise their duties under the Power of Attorney for Property, dated August 19, 2003. It was her that evidence the joint power of attorney was not working. She testified that it was not working and Robert Baker cancelled the meeting scheduled to resolve the outstanding issues.

[ 58 ] Ms. Barltrop said she needed legal advice as to what to do. She spoke to Mr. Deluca, a Windsor lawyer for advice. Mr. Deluca billed her $616.50. Ms. Barltrop paid Mr. Deluca’s account for the legal services she received.

[ 59 ] Counsel for Mr. Baker objected to the payment of $616.50 to Mr. Deluca. I do not accept the submission on behalf of the objector that the cost order of Morissette J. included Mr. Deluca’s account for legal advice.

[ 60 ] Counsel for Mr. Baker submits that these legal costs were fixed by Morissette J. I disagree. Counsel has not pointed to any evidence that Her Honour dealt with the payment of Mr. Deluca’s account. In Fiacco v. Lombardi (2009), 82 C.P.C. (6 th ) 235 (Ont. S.C.), at para. 44 , Brown J. considered costs in a contested guardian application. He stated:

Any costs awarded for this Motion should cover only work related to the bringing of the Motion; legal expenses incurred by the guardian for other work are properly dealt with elsewhere.

[ 61 ] Ms. Barltrop’s reimbursement for travel, meals and the meeting with Mr. DeLuca were properly before this Court on the passing of accounts. I find the rate for travel and meals were reasonable and these expenditures were for the benefit of Ethel Baker.

8. Objection: Marion Barltrop Reimbursement for Lost Wages and Trip Cancellation

[ 62 ] Ms. Barltrop reimbursed herself for lost wages and travel expenses. Ms. Barltrop was reimbursed $672.26 for travel expenses to Windsor for her attendance at the mediation in an attempt to resolve the family dispute. The Management Plan recognizes a debt owing to Ms. Barltrop for $672.26. It was Ms. Barltrop’s evidence that the claim was for lost wages and travel expenses in relation to the mediation held in Windsor. The Court finds it was necessary for Ms. Barltrop to attend the mediation because she was co-attorney for property and she lost one day of wages. As mentioned, Morissette J. adopted the Management Plan. The Court approves the payment of $672.26.

[ 63 ] It was Ms. Barltrop’s uncontradicted evidence that she missed a day of work to attend a meeting with a lawyer and another day for her cross-examination. Ms. Barltrop is a nurse and her hourly wage rate is $40.00 an hour. The Court finds that Ms. Barltrop should be compensated for wages lost in the amount of $253.30 for August 31, 2004, and February 16, 2005. Ms. Barltrop transposed a figure for the February 16, 2005 claim, resulting in an overpayment of $99. Ms. Barltrop acknowledged the error with respect to the February 16, 2005, reimbursement. Ms. Barltrop shall reduce her compensation as guardian for property by $99.

[ 64 ] Ms. Barltrop booked a holiday with a friend in February 2005. She purchased trip cancellation insurance. She informed her lawyer of her plans for a trip but Mr. Bennett scheduled the trial for a date that she was scheduled to be on vacation. She cancelled her trip to attend the hearing for the appointment of guardians. Ms. Barltrop was unable to recover the loss of $1,371.80 from the travel agents and could not claim compensation from the insurer because her physician would not provide her with a doctor’s note since she was not ill.

[ 65 ] The Court approves the payment of $1,371.80 to Ms. Barltrop for expenses incurred for her lost trip because she was required to attend the trial in relation to the guardian application.

9. Objection: Legal Fees incurred by Catherine Bensette as Attorney for Personal Care

[ 66 ] Ms. Barltrop reimbursed Catherine Bensette for legal fees of $14,271.21 that she incurred while acting under a Power of Attorney for personal care. Ms. Bensette required legal advice and litigation services because legal proceedings were commenced against her by her siblings (Exhibit 13A, 13B and 14).

[ 67 ] Catherine Bensette, Margaret Baker, and Marion Barltrop brought a motion for an order in accordance with the mediation agreement dated December 11, 2003. On April 6, 2004, Master Nolan ordered that Ms. Bensette “shall continue to exercise her duties under the Power of Attorney for Personal Care dated July 17 th 2003 executed by Ethel Baker.” Master Nolan ordered the payment of “$18,300 or thereabouts representing 60% of the legal fees of the respondents Catherine Bensette, Margaret Baker, and Marion Barltrop”.

[ 68 ] Ms. Barltrop, as Attorney for personal care, testified that Little, Inglis & Price rendered two legal accounts dated January 7, 2004, and March 31, 2005, related to her mother’s property. Ms. Bensette disputed Little, Inglis and Price’s account for legal services claimed as of March 31, 2005, in the amount of $22,687.56.

[ 69 ] Ms. Bensette retained McKenzie Lake to assess the legal fees of Little, Inglis & Price and the outstanding account was reduced in August 2007 to $14,271.21, a savings of $8,416.35. The payment of $2,117.50 to McKenzie Lake related to their account for the assessment of the former solicitor’s account. Accordingly, Ms. Bensette was correct that the Little, Inglis & Price account was excessive in the circumstances and she required the services of McKenzie Lake to assess their account.

[ 70 ] Ms. Barltrop authorized the payment of $14,271.21 and $2,117.50 in August 2007. These payments are unrelated to the payment of $45,412.92 to McKenzie Lake who commenced acting for Ms. Bensette in June 2004. I find that these payments were reasonably made in the circumstances.

10. Objection: Storage Costs

[ 71 ] Ms. Barltrop reimbursed Ms. Bensette in the amount of $339.80 in relation to the storage rental units in London (Exhibit 5, item #184). Ms. Barltrop was asked in cross-examination about the storage unit. She advised that letters were sent to Robert Baker about the storage lockers but he did not respond. As a result, Ms. Barltrop travelled to London to clean out the locker and dispose of the contents.

[ 72 ] The documents relating to the storage locker, namely the contract, a receipt from the storage company and the two credit card receipts of $116.60 each are on one photocopied page (Exhibit 2, Tab CC.). The difficulty is that the contract is partly covered by the receipt and the two credit card receipts.

[ 73 ] Counsel for Mr. Baker submits that the credit card receipts add up to $233.20. He submits that Ms. Barltrop should reimburse the estate $106.60 together with accrued interest.

[ 74 ] This proceeding is a passing of accounts and is not a forensic audit. It is not disputed that a storage unit was rented. There is a record of payments by a credit card in the amount of $233.20 but the amount paid in the receipt is covered by the other documents on the single page photocopy except for 80 cents. The maximum deficiency is $106.60. There was no suggestion that Ms. Barltrop acted dishonestly and paid Ms. Bensette an extra $106.60 for some unknown reason.

11. Objection: Compensation of Ms. Barltrop

[ 75 ] Morissette J. appointed Ms. Barltrop, a nurse, to be the guardian of property for her mother and to manage the property in accordance with the Management Plan sworn August 26, 2005. Morissette J. recognized the animosity amongst the siblings and who were unable to agree and co-operate to administer Ethel Baker’s estate. She found that Ms. Barltrop had done a good job notwithstanding the impediments imposed by her brothers. Mr. Robert Baker’s numerous objections on the passing of accounts are a continuation of an emotionally charged family dispute.

[ 76 ] Counsel for Mr. Baker submits that Ms. Barltrop made a relatively simple estate very complicated. Counsel argues that three sets of accounts were produced and numerous errors and questions remained requiring a hearing.

[ 77 ] There is no suggestion that Ms. Barltrop failed to account for monies received or dispersed. Ms. Barltrop explained the purpose of the payments she made to reimburse herself, her sister Catherine Bensette or third parties. There were no objections that monies received from bank or investment accounts were lost or were paid without recording the transaction. In my view, a disproportionate amount of time was spent on relatively small monetary matters; for example, the duplicate payments for train fare ($102.72) or interest charges on a loan to pay a lawyer’s accounts ($102.85). Ms. Barltrop acknowledged an error when counsel for Mr. Baker brought a matter to Ms. Barltrop’s attention during cross-examination. The Court finds that counsel for Mr. Baker was able to discover these duplicate or overpayments for small monetary amounts because Ms. Barltrop’s records are complete.

[ 78 ] Ms. Barltrop kept a record of all transactions of money received and money paid from the estate, for example, payments made to the Chelsey Park Fund so her mother could have lunch with visitors or purchase clothing. Ms. Barltrop made payments to Ms. Bensette, who acted under a power of attorney and later as guardian for the care of the person, for expenditures and services performed for the benefit of Ethel Baker. The reimbursement for food, travel, lost work and trip cancellation were appropriate in the circumstances. The reconciliation of the closing balance of the guardian for property and the opening balance of the estate trustee show that all monies were accounted for.

[ 79 ] I do not accept counsel for Mr. Baker’s submission that the records were unsatisfactory. Ms. Barltrop’s records recorded all disbursements and she provided an explanation for the payments. The first accounts were given to family members before there was an order to pass the accounts. It became necessary for Ms. Barltrop to retain professionals to assist her to pass accounts because the number and scope of Mr. Baker’s objections required her to do so.

[ 80 ] Ms. Barltrop was asked about the involvement of Mr. Robert and Joseph Baker in relation to their mother’s care. It was Ms. Barltrop’s evidence that she and Catherine Bensette were the primary caregivers for their mother. She said her brothers did not do much. Counsel for Robert Baker was critical of the payments made to Ms. Bensette providing 24 hour care for her mother when she was very ill. This care plan was as good as one performed by professional caregivers. There was no evidence that Robert Baker offered to assist Ms. Bensette to care for their mother during this period.

[ 81 ] A law firm was retained on Ethel Baker’s behalf because her father and Joseph Baker cashed $80,000 of Canada Savings Bonds. The solicitor commenced an action against the Royal Bank, her brother Joseph Baker and her deceased father’s estate. The action was settled by a payment of $39,900 to her mother’s account. Ms. Barltrop paid McKenzie Lake $4,198.20 for their fees in connection with this dispute. There were other incidents which arose requiring the assistance of lawyers as part of Ms. Barltrop duties managing her mother’s estate.

[ 82 ] The S.D.A recognizes that lay persons will administer estates of family members, relatives and friends. The standard of care requires Ms. Barltrop to exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs (s. 32(7)). I agree with the conclusion of Belch J. in Garonsky (Committee of) v. Brown , [2002] O.J. No. 880 (S.C.) that the higher standard in s.32 (8) does not automatically apply when a person claims compensation. I find that Ms. Barltrop has ably satisfied the statutory standard of care while performing her duties for the benefit of Ethel Baker as guardian of property.

[ 83 ] The Court finds that Ms. Barltrop exercised her duties and performed them “diligently, with honesty and integrity and in good faith” for the well-being and benefit of Ethel Baker in accordance with s. 32(1) of the S.D.A . Section 40 of the S.D.A and Ontario Regulation 26/95 provide a compensation scheme for the fees of the guardian of property. Ms. Barltrop is entitled to receive compensation pursuant to the statutory and regulatory scheme because she managed the incapable person’s property for her benefit.

[ 84 ] The Court finds that Ms. Barltrop’s claim for compensation is justified in the particular circumstances of her administration. I adjust the compensation to reflect the overpayments and duplicate payments which the court identified above. The Court finds, however, that Ms. Bartrop did not breach her duty of care to her mother when she inadvertently charged or paid monies in error.

12. Order

[ 85 ] The Court orders that the estate accounts of Ethel Baker as filed by the applicant Ms. Bartrop for the period from September 9, 2005 to November 18, 2008 are hereby passed.

[ 86 ] Counsel for the applicant shall serve and file written submissions on costs within 14 days of the release of the Court’s decision. The respondents shall have 10 days to serve and file a response on costs. The applicant shall have 5 days to serve and file a reply.

Justice A.W. Bryant

Date: May 11, 2012