SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-14-497611
DATE: 20140715
RE: MARIA FERNANDA MELO-AVELINO
Plaintiff (Responding Party)
AND:
DEOLINDA DE MELO and CARLOS DE MELO and MARIA ANTONIETTA ANGELA DE MELO
Defendants (Moving Party)
BEFORE: CHAPNIK J.
COUNSEL: Joshua S. D. Silver Courtney A. Kazembe
for the Plaintiff (Responding Party) for the Defendants (Moving Party)
HEARD: JULY 14, 2014
ENDORSEMENT
[1] Mr. Justice Corbett made an order in this matter on April 15, 2014 in which he agreed to case manage and hear all motions in this case. In the purported absence of Corbett J. and due to the moving party’s claim of urgency, I agreed to hear its motion.
[2] The plaintiff, Maria Fernanda Melo-Avelino (Maria) is the daughter of the defendant Deolinda de Melo (Deolinda); and the defendant Carlos de Melo (Carlos) is Maria’s brother and Deolinda’s son.
[3] In early 2014, Maria brought an application seeking an order pursuant to Rule 14.05(3)(d) of the Rules of Civil Procedure declaring Deolinda incapable of managing her property or financial affairs; and setting aside Powers of Attorney Maria granted to Carlos, on the basis of alleged undue influence perpetrated by him on Deolinda.
[4] In his order, Corbett J. ordered the matter to proceed as a trial of the issues. He also set out a timetable; and ordered that the most recent Powers of Attorney granted to Carlos, govern in the interim, subject to any motion by the plaintiff to challenge the said Powers of Attorney.
[5] On or about May 20, 2014, the plaintiff withdrew funds from a joint account at the TD Bank, in the names of her mother Deolinda and herself; and re-invested the proceeds in a different GIC account in her name only.
[6] The defendants bring this motion requiring the plaintiffs to immediately return the monies plus interest to Deolinda, and an order declaring the plaintiff in contempt for “failing to comply with the Court Order of Justice Corbett, dated April 15, 2014.”
[7] Specifically, the defendant alleges that Maria deliberately used her 2011 Power of Attorney to withdraw the term deposit that was valued at $45,067.23. Moreover, in order to do so, she received only $43,790.33, incurring a penalty of $1,276.90 for early redemption of the funds.
[8] The plaintiff denies having utilized any Power of Attorney to withdraw the funds. She indicated that, as an account holder, she had “full authority” to deal with the funds in her personal capacity. She alleges that her brother Carlos has a history of abusing Deolinda’s finances “for his own personal gain”, and that she withdrew the monies for her mother’s benefit and to safeguard her assets. She is prepared to pay the monies into court (though there may be early redemption penalties for this). As a result of Corbett J.’s order, Maria has ceased paying outstanding bills and accounts for Deolinda (except for the insurance on her home).
[9] She notes that her mother and brother Carlos now have full control and access to their accounts, including accounts in which Deolinda’s Pension and OAS income are deposited. Such funds are only to be used for Deolinda’s strict benefit.
[10] The exact wording of Corbett J.’s order in issue here is found in paras. 7 and 8 of the order, as follows:
THIS COURT ORDERS that subject to #8, below in the absence of any order to the contrary, the most recent Powers of Attorney – granted to Carlos De Melo, shall govern.
THIS COURT ORDERS the Applicant may move for an interlocutory order to challenge the Powers of Attorney, if she is so inclined.
[11] I do not view this motion as urgent. Having said that, I will say that both Maria and Carlos are fiduciaries and as such, are not entitled to exercise any Powers of Attorney granted to them, for their own benefit. I accept the assertion of the plaintiff, however, that she did not do so, in this instance.
[12] The courts have established a three part-test for a finding of contempt as follows:
The order not complied with must clearly and unequivocally set forth what must be done or not done;
The party who disobeys the order must have done so in a deliberate and willful manner.
The evidence must establish contempt beyond a reasonable doubt.
See, for example, G. (N.) c. Services aux Enfants & Adultes de Prescott-Russell, 2006 CarswellOnt 10355, para. 27; and Chatur v. De Los Reyes, 2010 ONSC 367 (), para. 28.
[13] The onus to establish contempt rests on the person alleging it.
[14] In this case, the order of Corbett J. is not clear or unequivocal in ordering the plaintiff to do or not to do any act that is in issue.
[15] In the particular circumstances of this case, the defendant has not shown that the plaintiff has breached an order of the court, nor has he demonstrated wilfulness or any contemptuous conduct on the part of the plaintiff.
[16] Accordingly, this motion for a return of the monies to the original joint account and GIC, and for an order of contempt and other related orders against the plaintiff, is dismissed. Those monies are to remain in the current account until further court order.
[17] I suggested in the hearing that this may be a matter in which the Public Guardian and Trustee should be involved. This and any other matters are hereby referred to Justice Corbett pursuant to his endorsement made April 15, 2014.
[18] Costs of this motion are reserved to Corbett J. or to the judge hearing the issues trial.
CHAPNIK J.
Date:
CORRECTION NOTICE
Corrected decision: the text of the original endorsement was corrected on July 23, 2014, and the description of the correction is appended:
The year in the neutral citation of the endorsement has been corrected from 2104 to 2014.