Wedemire v. Wedemire, 2017 ONSC 6891

CITATION: Wedemire v. Wedemire, 2017 ONSC 6891

COURT FILE NO.: FS-14-19800-00

DATE: 20171122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHARLES WESLEY WEDEMIRE

Applicant

– and –

MYRTLE BEATRICE WEDEMIRE

Respondent

L. Peter Clyne, for the Applicant

Heather Hogan, for the Respondent

HEARD: June 5, 6, 7 and 16, 2017

REASONS FOR JUDGMENT

harvison young j.

Overview

[1] This is a trial of two of the issues raised in proceedings by the Applicant Charles Wedemire naming Myrtle Wedermire and her adopted son Neallos Wedemire as Respondents.[^1] Charles commenced these proceedings in late 2014. Charles’ application seeks equalization and various relief against Neallos including:

(a) the setting aside of Myrtle’s 2013 purported transfer of her home to Neallos;

(b) accounting for funds withdrawn from Myrtle’s bank account while Neallos held a continuing power of attorney;

(c) accounting for the proceeds of a mortgage placed on the property by Neallos; and,

(d) for repayment of a credit line debt Myrtle had incurred in the amount of approximately $55,000 in 2007 to enable Neallos and his wife to purchase a home.

[2] The two issues before the court on this trial are (i) whether Myrtle’s purported transfer of the house to Neallos on June 18, 2013 should be set aside on the basis of undue influence or breach of fiduciary duty; and (ii) whether Myrtle is entitled to relief as against Neallos for breach of fiduciary duty with respect to the other transactions specified which have depleted her bank accounts and assets.

Factual Background

[3] The factual background of this matter is somewhat unusual. Although it arises from an equalization claim, both the husband, Charles, and the wife, Myrtle, deny that they were ever separated within the meaning of the Divorce Act. The chronology is therefore important and will be set out here in greater detail.

[4] Charles, now 82, and Myrtle, now 85, married in 1974. They lived in a house at 946 Danforth Road (“946 Danforth”) since purchasing it in 1977. Title was always registered solely in Myrtle’s name. Although Charles and Myrtle did not have any biological children, they sponsored (from Jamaica) and adopted Myrtle’s grand-nephew, Neallos Wedemire, and her grand-niece, Odette Edwards during the 1980s when they were school-aged. Neallos and Odette are legal siblings but not biological siblings.

[5] Myrtle’s health declined rapidly after the unexpected death of her sister and closest friend, Bearon, on April 13 or 14, 2013. While Myrtle had been somewhat forgetful and increasingly reliant on family members, including Neallos, her condition declined rapidly after Bearon’s death. Myrtle had granted Bearon a power of attorney and “Bea,” as Myrtle called her, had managed her finances and paid her bills for some time.

[6] Less than ten days after Bearon’s death, on April 25, 2013, Neallos took Myrtle to the office of a lawyer where Myrtle signed Continuing Powers of Attorney for Property and Personal Care naming Neallos as her attorney. The Continuing Powers of Attorney took effect that same day. On May 1, 2014, Neallos was added as a signatory to Myrtle’s TD chequing account #3162772 (“2772”). Very shortly thereafter, unusually large amounts of money began to be frequently withdrawn or transferred from this account.

[7] Both Charles and Myrtle indicate that following Bearon’s death, Neallos became angry when he discovered Myrtle’s will which did not name him as a beneficiary. According to Myrtle’s affidavit dated September 4, 2016, she did not name him as a beneficiary because, in 2007, she had borrowed against a line of credit on 946 Danforth to enable Neallos and his wife Fazeela to purchase a home. This amount had not been repaid despite the fact that Neallos and Fazeela had sold the house for a profit of roughly $148,000 in 2012, and despite the fact that Myrtle’s then lawyer, Mr. Leacock, had sent them a letter asking for repayment in 2011. Myrtle states in her affidavit that “she was not too happy with his behaviour” and believed that she “had extended a lot of financial help to Neallos over the years and thought he had received enough assistance” from her. In the same affidavit, Myrtle states that Neallos became very close to her after Bearon’s death, something that she also stated during questioning

[8] On June 18, 2013, Myrtle transferred title in 946 Danforth to Neallos.

[9] The transfer of the house contained the statement by Myrtle that “I am separated from my spouse and the property was not ordinarily occupied by us at the time of our separation as our family residence,” a fact which both Charles and Myrtle have now denied. Myrtle denies that they were ever separated within the meaning of the Divorce Act, stating that while she and Charles lived in different parts of the house, they would have meals together and socialize, and he was always her husband.

[10] Neallos’ position, set out in his answer to Charles’ application, is that Charles and Myrtle had been separated (under the same roof) for many years and that they were divorced. He claims that Charles equalization claim is statute barred because the separation took place in the 1980s. The divorce order to which Neallos refers is dated April 2, 2014.[^2] Charles asks, as part of the relief sought in his application that the divorce be set aside, denying that he was ever served with the application.

[11] The divorce was obtained during the period after Bearon’s death when Neallos was acting as Myrtle’s attorney. During her examination for discovery, Myrtle denied any knowledge of a divorce although she agreed that she signed a number of documents presented to her by Neallos that she did not read. With respect to the divorce documents, she states in her September 4, 2016 affidavit that:

I was not aware of what I was signing. I was very distraught after my sister’s death. I was told to sign the document so that my son could take care of me.

[12] The transfer of the house to Neallos was recorded as a “gift” in the Land Transfer Tax Statement. Charles apparently only learned of this purported transfer towards the end of October, 2014 and he immediately contacted counsel. He also swears that he was not served with any divorce papers and did not know of the purported divorce until this point.

[13] Neallos’ access to Myrtle’s accounts was terminated byOctober 29, 2014. In late October, 2014, Odette moved Myrtle to her home. According to Neallos’ answer dated January 5, 2015, Odette and Charles “ransacked the house, took all of Myrtle’s bank records and closed some of her bank accounts.” Neallos refers to this as Odette’s “kidnapping” or the “abduction of Myrtle” (Endorsement of Kiteley J., October 31, 2016) para. 10).

[14] Charles then brought this application for equalization in November, 2014. He claims that his application was triggered by Neallos’ attempt to sell 946 Danforth which led to Charles’ discovery that Myrtle had purportedly transferred the house to Neallos just after Bearon’s death, that there were significant amounts of unexplained transfers and withdrawals from Myrtle’s accounts, and that, unbeknownst to him, he and Myrtle had been divorced earlier in 2014.

[15] The application also seeks an accounting by Neallos of funds removed or transferred from Myrtle’s account and the diminished equity in 946 Danforth. According to Myrtle’s answer to the divorce application, Charles registered a caution against the matrimonial home on November 6, 2014 that was set to expire on January 26, 2015.

[16] Neallos’ position as set out in his answer is that although Charles and Myrtle had married in 1974 and lived in 946 Danforth since 1977, any equalization claim was out of time because they had been, in effect, separated under the same roof for most of that time. He claims that Charles spent extended periods of time in Jamaica and that he lived entirely on his own in the basement of 946 Danforth. In his answer, he took the position that all the transfers and withdrawals were either for Myrtle’s benefit or to compensate him for his expenses. He has insisted that the transfer of the house was a gift which Myrtle had intended to effect for some time.

[17] On January 28, 2015, a mortgage in the amount of $70,000 was registered against 946 Danforth in favour of Helen Margel to secure a loan in the same amount. This amount was increased by $35,000 on May 25, 2015.

[18] On June 3, 2015, Charles obtained a Certificate of Pending Litigation on 946 Danforth. Unfortunately, however, Neallos had by this time mortgaged the property for a total of $105,000 to secure the two loans of $70,000 and $35,000 respectively.

[19] On March 22, 2017, Stevenson J. ordered that the trial of the following two issues proceed on June 5, 2017 before me. These were the issues relating to the validity of the transfer of 946 Danforth from Myrtle to Neallos, and the question of whether Neallos was in breach of a fiduciary duty to Myrtle with respect to funds transferred out of her account during the period of his access to it, a mortgage placed on the property to secure a loan by Neallos, as well as the continued existence of a line of credit which Myrtle had incurred in 2007 to allow Neallos and his wife to purchase their first home.

[20] The issues and allegations set out in Charles’ application and Myrtle’s answer relating to the equalization application and are factually complex, particularly given Myrtle’s declining health and the allegations concerning Neallos’ role. For that reason it will be helpful to set out the procedural background to this trial.

[21] Myrtle and Charles have both led evidence that they at all times remained married and living together in 946 Danforth. There is no dispute that both Myrtle and Charles were living in 946 Danforth until Myrtle left in the fall of 2014 to live with Odette. All the evidence, including Myrtle’s, is that Charles lived in the basement and Myrtle lived on the main floor.

[22] Regardless, the nature of the relationship between Charles and Myrtle and the validity of the alleged divorce were not issues before me on this trial.

Procedural background of this trial

[23] Between the time that Charles commenced his application for equalization in November, 2014 and the September, 2016 the parties attended at least 16 case conferences and one motion on September 20, 2016 by Myrtle and Charles to strike Neallos’ pleadings. Glustein J. dismissed the motion and provided Neallos with one more chance to produce the documents that he had already been ordered to produce by Kiteley J.’s order dated February 3, 2016.

[24] On October 31, 2016, Kiteley J. refused Myrtle’s motion to appoint her daughter Odette Edwards (Neallos’s sister) as Myrtle’s litigation guardian and found Myrtle to be a person under a disability. She ordered that the file be forwarded along with the motion material and her order to the Office of the Public Guardian and Trustee (“PGT”). The PGT was appointed as Myrtle’s legal representative on November 22, 2016. Ms. Heather Hogan has been on the record as counsel since that time. The PGT is not guardian of Myrtle’s property or personal care.

[25] This directed trial of the two discreet issues set out above was ordered by Stevenson J. on March 22, 2017, and the remaining issues in the application were adjourned pending the outcome of trial. The same order named me as the trial judge.

[26] The parties appeared before me on a number of occasions between March 22 and June 5 to address various procedural and trial management issues.

[27] By order dated April 26, 2017 I ordered that the evidence in chief would be submitted in affidavit form according to specific deadlines, with Charles and Neallos having the right to supplement their written evidence with up to 30 minutes of viva voce evidence, followed by cross-examination.

[28] I also ordered that Myrtle’s trial evidence be led by the PGT in the form of an affidavit which contained

a. Myrtle’s questioning transcript dated January 14, 2016;

b. Myrtle’s Affidavit sworn September 4, 2016;

c. Myrtle’s Amended Answer dated March 29, 2017.

Issues and analysis

[29] The substantive issues in this trial, then, are as follows:

a. Should the June 18, 2013 transfer of Myrtle Wedemire’s 100% interest in title to 946 Danforth be set aside on the grounds of undue influence and/or breach of fiduciary duty?

b. Was Myrtle vulnerable during the period between April 1, 2013 and November 23, 2014 and was she relying on Neallos during the period, and if so, is Neallos Wedemire liable to Myrtle for breach of fiduciary duty in respect of certain specified transactions which took place between those dates?

[30] The impugned transactions referred to in the second question are as follows:

• the cash outgoings from Myrtle’s TD 2772 account in the amount of $159,174

• the TD Line of Credit in the amount of $58,145.81

• The mortgage placed on 946 Danforth in 2015

The Admissibility of Myrtle’s Evidence

[31] There is a preliminary issue to be addressed, however, and that is the admissibility of Myrtle’s evidence. The evidence consists of:

a. The transcript of her discovery dated January 14, 2016

b. Her affidavit sworn September 4, 2016.

[32] There is no dispute that Myrtle was unable and unavailable to testify at the time of trial. She was hospitalised at least by the time of the trial management conference before me on April 26, 2017, and according to Ms. Hogan, remained so hospitalized until the end of the trial. Although no details were provided to the court, the hospital records led in evidence make it clear that Myrtle has suffered from congestive heart failure for a number of years. In addition, she has suffered from some dementia, which appears to have been increasing over time. Thus, the PGT did not have a witness through whom to lead its evidence-in-chief.

[33] My order of April 26, 2017 also provided that Myrtle’s Amended Answer could be introduced as an attachment to her affidavit. The only substantial difference between this answer and the original answer is that the claim of fraud was dropped.

[34] Neallos submits that the discovery transcript and affidavit evidence led on behalf of Myrtle was inadmissible though he did not draw the attention of the court to any pertinent legal authority on the issue, nor did he make any legal submissions on the evidentiary points. In addition, he did not lead any evidence to suggest that Myrtle could have testified

[35] On behalf of the PGT, Ms. Hogan submits that all of the evidence was properly admitted, because as a special party, the law provides for exceptions to the usual rule requiring a party to lead evidence in person and be cross examined.

[36] Having heard and read the parties’ submissions, I find that the evidence introduced by Myrtle, as a special party, is admissible in these proceedings.

Myrtle’s discovery transcript

[37] The use of discovery (called “questioning” in family law proceedings) transcripts as evidence in chief is permitted in certain specific circumstances as set out in the Family Law Rules, O. Reg. 114/99: see Family Law Rules 23(13), (15) (17) and (21). 20.

[38] There can be no doubt that these provisions apply to the discovery transcript in this case. First, Myrtle is not available to testify in person. Second, the evidence relied on by the PGT would be otherwise admissible as necessary and reliable hearsay under the threshold reliability framework in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Myrtle’s evidence in her discovery transcript is corroborated by other evidence before the court, including the third-party financial records. Third, she has been found to be a special party in Kiteley J.’s order of October 31, 2016 which resulted in the appointment of the PGT as her legal representative.

[39] In this case, the evidence is very important to the issues of this trial relating to undue influence and breach of fiduciary duty. It is particularly important because, on the facts of this case, and as I will discuss below, the evidence speaks to Myrtle’s vulnerability after her sister’s death when she granted the power of attorney to Neallos, and when she allegedly conveyed her house to him. If the general principle that trial evidence should be given orally in court is applied without permitting exceptions in cases such as Myrtle’s, the ability of the law to protect the most vulnerable people, such as Myrtle, would be undermined. The reasons for Myrtle’s current inability to testify – namely her age and health, are the very same indicators of her vulnerability. Moreover, the questioning was conducted by Mr. Misir, who was Neallos’ lawyer at the time and Myrtle testified under oath.

[40] This evidence, in my view, is clearly admissible. Issues of weight will be addressed below in relation to the particular issues.

Myrtle’s affidavit sworn September 4, 2016

[41] Like discovery evidence, affidavit evidence may be admissible when an affiant is unable to testify at trial: Reisman v. Reisman, 2014 ONCA 109, 315 O.A.C. 333.

[42] In Reisman, the Court of Appeal for Ontario, in a family law case, upheld the trial judge’s decision to admit and rely on affidavit evidence from the husband’s father, who was apparently suffering from dementia. At the trial level, Wilson J. had relied on r. 23(20) of the Family Law Rules (as it used to read) to admit the evidence: Reisman v. Reisman, 2012 ONSC 3148, 22 R.F.L. (7th) 423, at paras. 14-18. At paras. 66-67, the Court of Appeal gave further reasons for upholding the decision to admit and rely on the evidence, including that the wife had many opportunities to cross-examine the father, but she did not, and she filed no evidence to contradict the claim that the man could not testify. Moreover, another witness testified about similar matters, corroborating the father’s affidavit evidence, and the evidence was “hardly controversial”: Reisman, at para. 68.

[43] In the present case, the affidavit evidence is also admissible for a number of reasons. First, Myrtle’s affidavit was sworn on September 4, 2016, over 2 years ago. As in Reisman, Neallos has had ample time to cross examine Myrtle and has not done so. I am unable to find any record in the file of any subpoena or request on Neallos’ part that he cross examine Myrtle. Second, Neallos never suggested that Myrtle was capable, mentally or physically, of testifying at this trial.

[44] Third, certain matters in the sworn affidavit are corroborated by other witnesses who testified. Fazeela in her testimony refers to both Charles and Myrtle as “in-laws” and states that she always got along with Charles, though she also added that she was aware that he had an illegitimate child. Having listened carefully to her evidence, it is notable that Fazeela did not suggest that they were no longer spouses. This is not an issue before this court but I mention it because in this respect, I find that her evidence tends to corroborate Myrtle’s evidence although I do not think that she intended it to have that effect.

[45] In short, I find that both Myrtle’s questioning transcript and her September 4, 2016 affidavit are admissible evidence in this trial.

[46] Before addressing the first issue relating to the transfer of 946 Danforth it will be helpful to address the question of whether Neallos stood in a fiduciary relationship with Myrtle at the time. This question is relevant to both the issues of the transfer and the question of whether Neallos is in breach of a fiduciary duty in relation to the other specified transactions.

Did Neallos stand in a fiduciary relationship with Myrtle between April 2013 and November 2015?

[47] I note at the outset that much of Neallos’ evidence was to the effect that he had cared for his mother and that she had not been ill-treated. His evidence, and that of his wife, her mother (and Myrtle’s long time neighbour and friend) and sister-in-law, was that Myrtle was well cared for in her home by him and caregivers, and that he had not mistreated her.

[48] With respect, this evidence misses the point of the issues before the court in this trial. The issues are not about whether Neallos was a caring son in the broader sense, but whether, in dealing with her property, including the transfer of the house, he acted consistently with his legal obligations as a fiduciary.

[49] Ms. Hogan submits that Neallos stood in a fiduciary relationship with Myrtle for a number of reasons:

a. Myrtle was vulnerable in April, 2013 after her sister’s death;

b. Neallos knew that she was vulnerable and that she trusted him;

c. Myrtle signed a power of attorney on April 25, 2013, placing Neallos in a clear fiduciary role, whether or not he was a fiduciary before that date.

[50] The PGT position is that Neallos’ actions in relation to four specified transactions or sets of transactions between April 1, 2013 and November 23, 2014 constitute breaches of his fiduciary duty. These transactions were:

• the transfer of title to 946 Danforth on June 18, 2013;

• the cash outgoings from Myrtle’s TD 2772 account in the amount of $159,174;

• the TD Line of Credit in the amount of $58,145.81; and

• The mortgage placed on 946 Danforth in 2015

[51] In the recent case of Buccilli and Drapery Interiors Etc. Inc., v Pillitteri et al 2012 ONSC 6624, aff’d 2014 ONCA 432, [2014] O.J. No. 2561, Newbould J. cited Frame v Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, and Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261 as the leading authorities which address the necessary prerequisites for the existence of a fiduciary duty. In Frame v. Smith, Wilson J. articulated three general characteristics of relationships in which fiduciary obligations are imposed:

a. The fiduciary has scope for the exercise of some discretion or power.

b. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.

c. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

[52] In Elder, McLachlin C.J. narrowed these characteristics to articulate a test which may be summarized as follows. First, the evidence must show that the alleged fiduciary gave an undertaking of responsibility, express or implied, to act in accordance with the duty of loyalty imposed on him or her. As Newbould J. put it in Buccilli, at para. 181:

The undertaking may be found in the relationship between the parties, in an imposition of responsibility by statute, or under an express agreement to act as trustee of the beneficiary’s interests.

[53] Second, the duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them. Parent-child is one of those historically recognized relationships.

[54] Finally, the alleged fiduciary’s relationship must affect the legal or substantial practical interests of the beneficiary. As Newbould J. noted at para. 183, a property interest is the most obvious example.

[55] In this case, there can be no doubt that Neallos was in a fiduciary relationship to Myrtle during the entire period during which the transfers and withdrawals described above took place. There is also no doubt that the interests in issue, ie Myrtle’s investments, money, and her home, constitute “legal or substantial practical interests” of hers as beneficiary of the relationship.

[56] Neallos’ position at trial was somewhat difficult to discern. Throughout his evidence, he emphasized that he had been the one (along with his wife Fazeela) who helped Myrtle, took her to medical appointments, brought her groceries from time to time and generally checked in on her. The witnesses he led appear to have been called for the purpose of showing that he helped Myrtle greatly over the years, including during the 2013-2014 period. He drove her to appointments, brought groceries, did outside jobs, and so on.

[57] It is important to note that Myrtles’ capacity between April 2013 and November 2014 is not determinative of any of the issues before the court in this trial. Incapacity is not a precondition to a finding that a person is owed a fiduciary duty or to a finding that a transaction is subject to a presumption of undue influence: Buccilli et al. v. Pillitteri et al., 2012 ONSC 6624, [2012] O.J. No. 5628, at paras. 179-185; Estate of Annie MacKay v. Dawn MacKay (Evans), 2015 ONSC 7429, 15 E.T.R. (4^th) 18, at paras. 32-38; Servello v. Servello, 2015 ONCA 434, 9 E.T.R. (4^th) 169, at paras. 46-50.

[58] While he was evasive at many points during cross-examination, Neallos did acknowledge that Myrtle trusted him. However, having reviewed his evidence carefully, it is fair to say that his position is simply that that he denies having breached his fiduciary duties by failing to account for monies removed from her account, or that he unduly influenced Myrtle to transfer the house to him. He also repeatedly insisted that he had produced all the disclosure demanded of him. In some of his materials he claims that his sister, Odette, and/or Charles “stole” Myrtle’s documents from the home when Odette “kidnapped” her. He also claimed that he had not received full disclosure from Charles or the PGT.

[59] Having read and listened to all the evidence and submissions before the court, I conclude that Neallos was not a credible witness. His evidence changed over time and was self-serving. Although this may be partly attributable to the fact that he was unrepresented at trial, he did have the benefit of having been represented by three different lawyers since the application began in 2014. The clearest and most pervasive example of Neallos’ lack of credibility relates to his failure to make disclosure as required by numerous court orders, and then to insist repeatedly that he had made such disclosure and that the other parties were the ones failing to disclose.

[60] Neallos’ personal banking records during the period of his access to Myrtle’s accounts from April 1, 2013 to October 29, 2014 and also at the time of the advancement of the mortgage funds he obtained in January and May 2014 were central to this matter. Yet they were never produced despite repeated requests and court orders.[^3]

[61] The only disclosure he provided of his own bank accounts was from a CIBC account between January and August 2015 and one other short period which were heavily redacted and did not cover these crucial, earlier and specified dates. During his cross-examination at trial, he insisted that he had produced everything that was required of him. The court provided him with the chance during a break to locate these documents among the voluminous pages he had provided to the court. He was unable to do so and then advised that he would bring them the next day. He did not do so.

Was Myrtle vulnerable after Bearon’s death?

[62] The record at trial establishes beyond any doubt that Myrtle had been becoming increasingly vulnerable by the time of Bearon’s death.

[63] First, a Community Care Access Centre, (“CCAC”) assessor who had met with Myrtle and Bearon at 946 Danforth prior to Bearon’s death had recorded that Myrtle had memory problems, cognitive difficulties in new situations, hearing impairment and vision impairment.

[64] She had also been hospitalized and diagnosed with congestive heart failure.

[65] Myrtle’s family physician, Dr. Carmichael, stated in a letter dated February 14, 2015, that as of June 2012, Myrtle was disoriented, had “no insight”, had memory problems and was prescribed Aricept[^4]. In that letter, he went on to note “[d]iagnosis of Alzeimer’s in summer of 2012 but likely present for two or three years prior.” Dr. Carmichael also noted a “mild improvement” when he saw her in April 2013. I emphasize, as did the PGT, that this evidence is adduced for the purposes of establishing Myrtle’s vulnerability, not for the purpose of determining whether or not she had actually been diagnosed with dementia in 2012.

[66] In cross examination on the question of Myrtle’s increasing vulnerability before Bearon’s death, Neallos was evasive. While his own evidence in chief appears to emphasize the extent to which Myrtle needed his help, he resisted any acknowledgement of her cognitive vulnerability in the course of cross-examination. At trial, Neallos denied having been aware of Myrtle’s declining cognitive functioning. This is simply incredible and inconsistent with the evidence introduced.

[67] In 2014, Neallos accompanied Myrtle to the Scarborough General Hospital on June 4, 2016. The hospital notes entered into evidence state that:

…patient’s family have noted a progressive memory decline on the part of the patient for the last five to six years. She was apparently diagnosed with a dementia (unclear who made this diagnosis) approximately two years ago and she was started on Aricept at that time.

[68] It is clear from the notes that the information that Myrtle had been diagnosed with some dementia (and congestive heart failure) and that the family had noted a progressive memory decline over the previous five or six years must have come from Neallos as the report indicated that he was the only person there with her. He denied having known of any of Myrtle’s memory difficulties or her dementia diagnosis at the time that Bearon died.

[69] CCAC reports are also inconsistent with Neallos’ denial that Myrtle was vulnerable at the time of Bearon’s death. Notes from a CCAC assessment dated January 11, 2013 indicate that Myrtle acknowledged having memory problems. Bearon was at the meeting and advised that she called Myrtle regularly to remind her to take her medications, one of which was Aricept which is prescribed for memory problems. I do not accept Neallos’ evidence that Myrtle was not vulnerable, or that he did not know she was vulnerable. His evidence is inconsistent with both the medical reports and the CCAC notes introduced into evidence. While Myrtle may not have lacked legal capacity at that point, she was frail and had a number of health issues as the CCAC report indicates. According to the report, Neallos advised that they had installed a camera in the house which they could monitor remotely. In my view, this is clear evidence not only that she was vulnerable at the time but that Neallos was aware of her vulnerability.

[70] During cross examination, Neallos refused to concede that Bearon was caring for Myrtle in January, 2013. He was confronted in cross examination with his own evidence in chief stating that Bearon’s death “void (sic) that gap to which her assistance to Myrtle was no more Myrtle who knew the importance of having someone to look after her.” Neallos continued to deny that Bearon cared for Myrtle, saying only that Bearon was doing more social things with her. His resistance to admitting these obvious points stands in contradiction with all the other evidence before the court including his own evidence in chief[^5].

[71] Myrtle was devastated by Bearon’s death. Charles stated in his affidavit evidence that “Bearon’s death greatly affected the mind and thinking of Myrtle. After the death of her sister, Myrtle deteriorated immensely both physically and mentally.” Myrtle in the course of her questioning spoke frequently of the loss of her sister, referring more than once to the fact that they had spoken of a trip to Jamaica on one day and then she was gone. She also stated that “Bea” (as she called her) was her “right hand” and was “smarter than me”. In her affidavit, Myrtle stated that “Bearon’s death had a severe impact on me both physically and mentally.” I note that Fazeela Wedemire, Neallos’ wife, denied that Myrtle was seriously affected by Bearon’s death, saying that Myrtle was composed and matter of fact when she called Fazeela to tell her of Bearon’s sudden death. However, as Fazeela readily acknowledged, she lived in Ajax and had a number of small children to look after, and there is no evidence that she was seeing Myrtle regularly in the months following Bearon’s death. For these reasons I accept the evidence of Charles and Myrtle that Myrtle’s health was negatively affected by Bearon’s death.

[72] In short, there is ample evidence before the court that Myrtle was vulnerable, even if still capable in the legal sense, well before Bearon’s death. Myrtle felt lost after Bearon’s death, which sadly caused her great grief and made her that much more vulnerable.

Did Neallos know Myrtle was vulnerable?

[73] Having reviewed and carefully assessed all of the evidence before the court, I am satisfied that Neallos was well aware of Myrtle’s vulnerable state by the time of, and particularly as a result of, Bearon’s death in April, 2013. As I have indicated above, the independent evidence of the medical records shows that Neallos was the source of information that Myrtle had been having memory problems for a number of years. The fact that he and Fazeela arranged for cameras in her house so they could monitor Myrtle from Ajax strongly infers that they recognized her frailty and vulnerability.

[74] In his testimony, Neallos denied having any awareness of Myrtle’s memory issues before the fall of 2014. As the PGT states in its closing submissions, Neallos’ position at trial seems to have been that Myrtle was capable after Bearon’s death and he did not owe her any fiduciary duty. This would explain why he was repeatedly evasive during the trial on the subject of Myrtle’s vulnerability by the time of Bearon’s death.

[75] Whatever the reason for Neallos evasiveness and unwillingness to acknowledge Myrtle’s vulnerability as of April, 2013, it defies credulity, in the face of all the other evidence which includes independent evidence, and his own previous evidence. Neallos called three witnesses to testify. These included his mother-in-law, who is a neighbor of Myrtle’s, his wife Fazeela, and his sister-in-law.

[76] These witnesses were not of great assistance to Neallos because their evidence was, in general, that Neallos was always very close with Myrtle and helped her a great deal. There was little specific evidence about her health at the time of Bearon’s death, and none of the witnesses was aware of the extent of Myrtle’s dependence on Bearon to manage her finances. Fazeela testified that she was not aware that Bearon had a power of attorney until after her death.

[77] Independent evidence of Myrtle’s cognitive decline over a number of years was before the court. She had attended Scarborough Hospital on a number of occasions going back to 2012. A report by Dr. George Vertes and Erin Charnish at the GAIN clinic at Scarborough Hospital[^6] dated June 4, 2014 indicates that Neallos, who accompanied her on that date, had reported that Myrtle’s memory had been declining over the previous five to six years and that there had been a possible diagnosis of dementia in 2012. This is clear evidence that he knew of her vulnerability. The same report states that the patient was fully dependent on her son to manage her finances.

[78] I also note that all three of the witnesses called by Neallos, including his wife Fazeela, presented a picture of a devoted son who was, after Bearon’s death, the only one caring for her. This makes it difficult to believe that he was unaware of Myrtle’s vulnerability prior to the fall of 2014.

[79] For all of these reasons, I find that Neallos was very aware of Myrtle’s vulnerable state following the death of Bearon.

Was Neallos Myrtle’s fiduciary as of May 1, 2013?

[80] May 1, 2013 is the date upon which Neallos was added as a signatory to Myrtle’s TD bank account ending in 2772. This is significant because this is the account from which the impugned cash withdrawals were taken.

[81] Once again, and having read and heard the evidence and the parties’ submissions, I am satisfied that there can be no doubt that Neallos stood in a fiduciary relationship as of May 1, 2013. This relationship existed at least from the time of Bearon’s death. The fact that Myrtle executed a power of attorney in Neallos’ favour, at the very least, is strong evidence of the trust she placed in him. As I have already noted, the evidence before the court is that Myrtle was highly dependent on Bearon and felt lost after her death.

[82] Myrtle’s evidence at questioning is important on this point. She said that she had trusted Bearon and after she died she worried that her bills were not going to be paid. Her evidence was that she was relieved that Neallos was there to step in, that he took her to various lawyers and banks to do, and sign, whatever was necessary for him to take over Bearon’s role.

[83] Myrtle’s questioning evidence dated January 14, 2016 must be assessed with some care. First, the examination, conducted by Neallos then-lawyer Mr. Misir, was challenging because Myrtle was very hard of hearing. Questions had to be repeated and at times it is clear that she mis-heard the questions posed. Second, her cognitive challenges were obvious in places, particularly when asked about dates and time periods. She was unable to remember when or in what year she left 946 Danforth to live with her daughter. She was unable to recall when she bought 946 Danforth, saying that it was “many, many” years ago. And she could not recall when Neallos had come to Canada, though she stated that she had adopted him and raised him and that he was school-aged when he came.

[84] Myrtle’s evidence on certain key points, however, was both internally consistent and consistent with that of other witnesses, including Neallos’ evidence in chief. She testified that shortly after Bearon died, Neallos took her to various banks and lawyers and signed various documents. There is no dispute that Neallos was added as a joint signatory to Myrtle’s TD account on May 1, 2013 and that she signed a continuing power of attorney on April 25, 2013 in favour of Neallos.

[85] Myrtle was not sure of what lawyers she saw when, or what she signed where, but it is clear from a review of her evidence as a whole that she understood that the purpose of these trips was to allow Neallos to look after her. It is also clear that Neallos arranged and transported Myrtle to all these appointments. Although, as I have indicated earlier, Neallos was evasive in cross examination at trial on this point, he admitted to Mr. Clyne, Charles’ counsel, that when he was named Myrtle’s attorney and added to her chequing account, Myrtle trusted him. I accept Myrtle’s evidence that she signed documents without reading them, because she trusted him and believed that he was looking after her interests.

[86] In summary, the evidence that Neallos was in a fiduciary relationship to Myrtle as of May 1, 2013 is overwhelming. This is so particularly in light of the fact that the addition of an adult child to an elderly parent’s bank account for the purpose of assisting that elderly parent is sufficient to trigger the adult child’s role as a fiduciary, regardless of the capacity of the elderly parent and regardless of whether that adult child was acting as an attorney for property: see Estate of Annie MacKay v Dawn MacKay (Evans), 2015 ONSC 7429, 15 E.T.R. (4^th) 18.

[87] In MacKay Estate, the Woodley J. applied the Supreme Court’s analysis in Frame v. Smith and found that the role of fiduciary was triggered by Dawn MacKay’s power to exercise unilateral discretionary decisions that affected the legal or practical interests of her vulnerable mother, Annie MacKay. Justice Woodley found that Dawn was a fiduciary of Annie in 2003, when Dawn began paying herself attorney compensation, despite the fact that Annie remained capable of managing her property until 2005, and at all relevant times had someone else acting as her attorney for property [MacKay, paras 35 – 37].

[88] Neallos had the power to, and did make unilateral discretionary decisions that affected Myrtle’s legal or practical interests, who was vulnerable and did trust Neallos to take care of her. Accordingly, I find that Neallos was acting as a fiduciary in respect of all four financial transactions discussed in the following section:

• the transfer of title to 946 Danforth on June 18,2013,

• the cash outgoings from Myrtle’s TD 2772 account in the amount of $159,174

• the TD Line of Credit in the amount of $58,145.81

• The mortgage placed on 946 Danforth in 2015

[89] I will now address these in turn.

The transfer of title of 946 Danforth

[90] As earlier indicated, the transfer of 946 Danforth from Myrtle to Neallos was effected on June 18, 2013. The PGT position is that this transfer should be set aside on the basis of undue influence and/or breach of fiduciary duty.

[91] Neallos takes the position that he did not rely on the power of attorney to effect the transfer of the house and that it was entirely Myrtle’s wish to transfer the house to him.

[92] However, as I have just discussed, Neallos was in a fiduciary relationship to Myrtle at this point as indicated above. It is also of concern that the lawyer who effected the transfer, seems to have acted for both Neallos and Myrtle. There is no evidence that Myrtle was offered independent legal advice. The circumstances discussed above in relation to Myrtle’s vulnerability, the fact that he knew of her vulnerability, and that she trusted him all serve to trigger a presumption of undue influence with respect to the transfer of the house to Neallos.

[93] That presumption is not rebutted on the evidence before the court. I do not accept Neallos’ evidence. As I have already indicated, I found his evidence to be largely incredible and unreliable. It changed not only over time, but during cross-examination on a number of points, and the only consistency was that his evidence corresponded to his understanding of what was in his own interest at that moment.

[94] Fazeela testified that Myrtle had often spoken of her desire that Neallos have 946 Danforth and stated that she said she wanted to move somewhere smaller. Fazeela impressed me as a witness who did her best to tell the truth, but I do not accept her evidence on this point. As Neallos’ wife, her interests are significantly tied up with his. In addition, the CCAC report dated January 1, 2013 states that Myrtle did not want to move, despite the fact that her sister Bearon thought she should move to assisted living or long term care. The report stated that Myrtle wished to stay in her home with support. Fazeela testified that she and Neallos are the parents of five young children, including a new baby as of the time of trial. I find that this reality undermined the reliability of her evidence about Myrtle’s wishes. Moreover, Fazeela’s testimony concerning Myrtle’s wishes was entirely lacking in specificity.

[95] Fazeela’s mother, a neighbor and friend of Myrtle’s over the years, also testified that Myrtle had often spoken about wanting Neallos to have the house. Her evidence was also lacking in specificity and I give it little weight.

[96] Myrtle’s own evidence also runs counter to the suggestion that she made a decision to transfer her house to Neallos. In the course of her questioning, she was asked to review the signed transfer documents in respect of title to her home at 946 Danforth. She stated:

When you trust people you don’t read everything. You take it that they smart and they know what they’re doing, so you follow what they’re saying. And now I – now I learn from that.

[97] Myrtle referred in her transcript to having signed a number of documents without reading them at banks and lawyers offices to which Neallos had taken her. Her evidence was consistent on this point, and must be understood within the context of her frequent references to the loss of her sister who she referred to as “the smart one”, “my right hand” and who was then simply gone. I accept her evidence that she signed whatever Neallos asked her to without reading what she was signing. She trusted him and was relieved that he was stepping in to look after her, especially during this period of grief for her “Bea.”

[98] I also accept her evidence that she did not intend to transfer her house to Neallos. She denied telling the lawyer (Mr. Lieberman) that she wished to transfer the house to Neallos, saying that she was just given papers already prepared to sign. She said

It’s puzzling to me. Where would I sleep? Where would I go? If I give it to him, where would I go? On the street? I couldn’t do that. You can’t sleep out there in the cold, it’s impossible.

[99] The evidence in this case is overwhelming that Myrtle did not understand that she was transferring 946 Danforth to Neallos when she signed the papers and that this signature was the result of undue influence on his part. Neallos led no evidence that might have rebutted the presumption of undue influence. For example, he did not call Mr. Lieberman as a witness.

[100] It is not necessary to decide whether Neallos was acting as Myrtle’s fiduciary at the time of the transfer because the evidence is so strong that the presumption of undue influence was triggered and not rebutted. I note, however, that even if he did not think he was acting as her fiduciary as far as the transfer was concerned, the fact that she had added him to her bank account and given him a power of attorney operate to emphasize the extent to which she trusted him and he knew that she trusted him. I also note that although it seems that no other members of the family (such as Charles or Odette) knew that the purported transfer had taken place for about a year, Neallos never acted as though he was holding title for the benefit of Myrtle. Rather, his conduct has been to assert his right to the property on the basis of the transfer. He mortgaged the property and has never accounted for any of these proceeds to Myrtle. He attempted to sell the property and, according to Charles’ affidavit, in 2014 he changed the locks to the house and began eviction proceedings against him (Affidavit of Charles Wedemire, May 15, 2017, at para. 23). According to Charles, he has been renting out the main floor of the house and collecting the rents.

[101] In conclusion, the transfer of 946 Danforth must be set aside on the basis of undue influence. The presumption of undue influence is clearly triggered in all of the circumstances and it is not rebutted on the evidence before the court. It follows that any rents currently being paid must be to Myrtle’s account.

[102] Thus, the answer to the first issue for determination at this trial:

[whether] the transfer of the Respondent Myrtle Wedemire’s interest in title to 946 Danforth Road to her adopted son, Respondent #2 Neallos, made on June 18, 2014 be set aside on grounds of undue influence and/or breach of fiduciary duty is affirmative.

The cash outgoings from the TD Chequing Account,

[103] Between June 5, 2013 and October 29, 2014, Myrtle’s TD assets decreased from $$323,402.94 to $202,502. The amount of $159,174.00 represents the amount of cash that went out of the Myrtle’s bank account between May 1, 2013 and October 29, 2014 which is the date upon which Neallos’ access to the account was halted.

[104] The following is a monthly summary of the amounts of the impugned transactions which total $159,174.00:

May 2013:

$ 2,500

June 2013:

$ 7,100

July 2013:

$ 9,800

August 2013:

$ 8,700

September 2013:

$ 6,500

October 2013:

$ 8,500

November 2013:

$14,265

December 2013:

$ 32,587

January 2014:

$15,000

February 2014:

$ 9,300

March 2014:

$ 10,300

April 2014:

$ 4,300

May 2014:

$ 1,300

June 2014:

$ 1,640

July 2014:

$ 2,922

August 2014:

$ 12,480

September 2014:

$ 8,000

October 2014:

$ 3,980

[105] There are a number of striking features of the amounts and patterns of these withdrawals, particularly when seen in context.

[106] First, Myrtle’s financial statement dated December 23, 2014, which Neallos did not challenge, reports annual expenses of $20,000. Her only reported income was CPP in the amount of $1,100 monthly.

[107] Second, while the amounts withdrawn varied monthly, the cash withdrawn in a number of single months exceeds her entire annual expenses, for example, $32,587 in the month of December, 2013.

[108] Third, there is no credible evidence that any of this money was used for Myrtle’s living expenses or indeed anything for her benefit. Neallos’ evidence on the point varied from time to time.

[109] Although Neallos claimed that he was using these monies to pay for her expenses and care, the TD banking records that the PGT was eventually able to obtain showed that Myrtle’s expenses were paid by direct debits that are consistent throughout Myrtle’s chequing account, and which appear to be Myrtle’s legitimate monthly or bimonthly expenses, such as her monthly or bi-monthly payment of Reliance (water heater), Enbridge, Bell Canada, Rogers Cable, Toronto Hydro, State Farm insurance, and City of Toronto Taxes.

[110] Many of the withdrawals took place in Ajax where Neallos and his family live. Under cross-examination by Mr. Clyne at trial, Neallos stated that he made all the withdrawals at Myrtle’s request and delivered the cash to her. He stated that he never asked her what she needed this money for. She would call him and ask for cash, and he would simply withdraw it and deliver it without asking any questions about what she needed it for. At one point he acknowledged that he kept some of the money to compensate for his expenses, but provided no details. During the period from May 1, 2013 to October 29, 2013, the money in Myrtle’s account was increased by the liquidation of some of her investments. On September 5, 2013, the liquidated amount of her SunLife shares ($10,598.69) was deposited into her bank account. Thus, the withdrawals were not used to pay Myrtle’s recurring fixed expenses.

[111] On November 19, 2013, the proceeds of one of Myrtle’s GICs in the amount of $66,462.50 was deposited in her TD Chequing account. On August 19, 2014, the proceeds of another of Myrtle’s GICs in the amount of $21,800 was deposited in the TD Chequing account 2772.

[112] Neallos’ explanations for these transactions can only be described as preposterous and utterly incredible. For example, at one point he claimed that he had to withdraw cash for private caregivers to be with Myrtle as he could not be there with her each day due to his work and other obligations in Ajax. But his evidence was also that he delivered each withdrawal to her at the time which meant that he was, in fact, going frequently, and sometimes making multiple trips from Ajax on the same day. Not only is this contradictory but Neallos did not provide any specifics or receipts as to what sort of private care she required (in addition to the CCAC public assistance she was getting), who was providing it or how much it cost. In short, there is no credible indication that Myrtle had the assistance of any paid caregivers other than those provided by CCAC at no cost to her.

[113] Neallos also acknowledged that Myrtle did not have any need for cash when she was hospitalized with severe congestive heart failure between February 25, 2014 and February 28, 2014. However, under cross examination he admitted withdrawing $400 from her account on February 25 and $1000 on February 27.

[114] As Myrtle’s fiduciary, Neallos had a duty to account for these funds. This was very expressly ordered by Stevenson J. on March 17, 2017 which required Neallos to provide to Ms. Hogan “a detailed accounting of the outgoings” from Myrtle’s 2772 account between April 1, 2013 and November 23, 2014 along with either receipts or explanations of why there are no receipts. The same court order also provided that this accounting was to include Neallos’ “personal bank account statements with respect to any accounts held solely by him or jointly with another person” during the same period. He was to do this no later than April 19, 2017.

[115] It would be an understatement to say that Neallos did not comply with this order. Despite producing hundreds of pages of documentation to the court, none of it responds to this order which lies at the heart of his obligation to account for the transfers he effected.

[116] During cross-examination at trial, Neallos insisted that he had produced what he was required to produce i.e. his personal bank statements for the relevant period i.e. from April 2013 to November 2014. The court provided him with the opportunity to identify it to counsel in his materials. He was unable to do so. He then advised that he could bring them in the next morning. He failed to do so. Not only did he breach his fiduciary duty to account, he did so flagrantly and despite the fact that a number of judges had explained to him what was required. There is ample reason to draw an adverse inference from his failure to produce his personal bank account records and or receipts to show where these funds went.

[117] In conclusion on this point, Neallos has breached his fiduciary duty to account for the funds that went out of Myrtle’s 2772 account between May 1, 2013 and October 29, 2014. The only appropriate remedy is an order that he repay this amount.

The depletion of Myrtle’s equity in 946 Danforth

[118] Prior to the commencement of trial, the PGT advised at the TMC on May 24, 2016 that it would not pursue at trial the issue of an apparent $10,000 increase in Myrtle’s debt in or around October of 2014. This increase appeared in documents obtained by the PGT from TD Bank in May of 2017. Neallos raised this as an issue, but it is important at the outset to state that this amount is not included in the amounts sought by the PGT on Myrtle’s behalf. That amount is not in issue in this proceeding.

[119] There is little dispute as to the fact that Myrtle, in 2011, drew on her line of credit in 2007 in order to enable Neallos and Fazeela to buy their first home. The outstanding balance owing on April 22, 2013 was $57,320.30 on April 22, 2013 and $58,145.81 on October 29, 2014. The purchase price of the house was $250,000. This property was sold in 2012 for the amount of $398,000.00.

[120] Neallos’ position has been that Myrtle never expected him to repay this amount. The evidence does not support his position. He paid $200 per month to Myrtle over a number of years which tends to support the position that it was intended as a loan. He claims that he continued to pay this amount during the period of May 1 2013 to October 29, 2014 but this is difficult to verify, and the PGT points out that given the volume of cash withdrawals, it is possible that Myrtle’s own money was being used to pay the $200 amount.

[121] In addition, Mr. Leacock, Myrtle’s lawyer at the time, sent a letter to Neallos dated May 10, 2011 asking that he make concrete arrangements for the repayment of the amount owing at that time in the approximate amount of $65,000. One of the suggestions was that Neallos and his wife sign a direction providing that the balance would be paid out of the net proceeds of the sale of their home when it was sold. At the end of the letter Mr. Leacock’s letter wrote:

The bottom line here is that Mrs. Wedemire is holding approximately $65,000 in debt on your behalf and this situation cannot be allowed to continue.

[122] There is no indication of any contemporaneous claim on Neallos’ part that this was not a loan but a gift. The only evidence that it was intended as a gift comes from Neallos himself and I do not accept his evidence for the reasons that I have already set out.

[123] The existence of this loan to Neallos as of the time when he became Myrtle’s fiduciary and controlled her bank account is a clear conflict of interest.

[124] I am satisfied that this money was a loan to Neallos and that its continued existence placed him in a conflict of interest when he was in a fiduciary relationship to Myrtle. As a loan, I am satisfied that it benefited him personally in that it enabled him and his wife to purchase a home and then, by not repaying it, they have been able to purchase other homes.

[125] His complete failure to account for his expenditure of the line of credit proceeds, or to produce his personal bank account records between April 2013 and November 2014 justifies a negative inference that Neallos owes the balance of the line of credit which existed on October 29, 2014 in the amount of $58,145.81. The only appropriate remedy for this breach of fiduciary duty is an order that he repay this amount.

The mortgage placed on 946 Danforth in the amount of $105,000

[126] As of October 29, 2014, Neallos had no further access to Myrtle’s account. Charles commenced this application in November 2014. Neallos agrees that he obtained a mortgage on 946 Danforth in January, 2015 in the amount of $70,000 which was increased to $105,000 in May, 2015. These proceeds were deposited in his CIBC account on January 28, 2015 and May 26, 2015 respectively.

[127] Neallos’ position is that, as indicated earlier, Myrtle’s transfer of 946 to him was entirely valid and that he was therefore entitled to mortgage the house as his own, and to rent out the main floor on his own behalf as he has done.

[128] The only disclosure of personal accounts provided by Neallos was in relation to his CIBC account during the period from January until August 2015 (as well as some TD statements between June and September 2015). The CIBC statements show monthly direct payments of a mortgage in the amount of $1502.70. Neallos testified in cross-examination that he was paying the mortgage on 946 Danforth via post-dated cheques in the amount $612.50. The reasonable inference is that the $1502.70 amounts were payments toward his own mortgage.

[129] In addition, his CIBC statements show that on January 28, 2015, the same day that the mortgage proceeds were deposited into the account, a number of payments were made from that account:

• Payments to Master Card totalling $13,000

• A transfer out of the account in the amount of $10,000

• Various unexplained withdrawals

[130] The CIBC statements also show payments which are clearly not for Myrtle’s benefit, such as exercise club fees, toy expenses, restaurant charges, etc.

[131] The uncontested evidence is that Neallos is currently renting out the main floor of 946 Danforth. He has failed to produce the rental agreements or accounting for the rents as required by court orders of both Kiteley and Glustein JJ.

[132] This evidence establishes that Neallos not only failed to meet the terms of various court orders required that he produce various disclosure and account for the proceeds, but also that he and his family have directly benefited from these proceeds.

[133] Although Neallos did produce some bank statements, these were of little assistance. His personal CIBC account was redacted to show only two deposits, one in January 2015 and one in May 2015 which total the amount of the mortgage debt.

[134] He produced certain bank account statements from his TD account as evidence that he was paying the 946 Danforth monthly mortgage payments of $612.50. However, he produced only the statements from the dates of June to September 2015.

[135] I do not accept Neallos’ position that because he held legal title to 946 Danforth, he was entitled to treat it as his own property. As I have already discussed above at para. 55, he stood in a fiduciary relationship to Myrtle at the time of the purported transfer. This triggered a presumption of undue influence which he was unable to rebut as discussed earlier in these reasons. Accordingly, Myrtle remains the equitable owner of 946 Danforth and Neallos had no right to place a mortgage on it and to use the proceeds for his own benefit. He must therefore account to her for the value of this mortgage, that is, the $105,000 claimed.

[136] In summary, I am satisfied that Neallos was in breach of his fiduciary obligations to Myrtle in mortgaging her house and thus must account to her for the amount secured.

Conclusion

[137] For the foregoing reasons, I am satisfied that the following orders must issue:

1. that the June 18, 2013, transfer of title to the real property located at 946 Danforth Road from Myrtle Wedemire to Neallos Wedemire is set aside. Specifically, the transfer instrument number AT3327524 registered on June 18, 2013, on title to the real property located at 946 Danforth Road, Scarborough, Ontario, M1K 1J1 and described by Ontario Land Titles as LT 77 PL 4298 Scarborough; S/T SC112771; Toronto, City of Toronto, PIN number 06424-0151 is hereby set aside.

2. that title to real property located at 946 Danforth Road, Scarborough, Ontario, M1K 1J1 and described by Ontario Land Titles as LT 77 PL 4298 Scarborough; S/T SC112771; Toronto, City of Toronto, PIN number 06424-0151, is hereby vested in Myrtle Wedemire.

3. that Neallos Wedemire shall forthwith pay to Myrtle Wedemire the amount of $322,319.81 (the “Judgment Amount”) which is comprised of the following:

a. $159,174.00 in respect of cash withdrawn from or transferred out of Myrtle Wedemire’s TD Chequing account between May 1, 2013 and October 29, 2014.

b. $105,000.00 in respect of the principal amount of the mortgage that Neallos Wedemire registered on 946 Danforth.

c. $58,145.81 in respect of the TD Line of Credit that Myrtle loaned to Neallos.

d. that Neallos Wedemire is hereby removed as Respondent #2 to the within proceedings and shall no longer be entitled to notice of further proceedings in this court file and that the necessity of obtaining his consent to any further steps in these proceedings, to any documents required by the Registrar of the Ontario Land Titles Office to give effect to this Judgment, or to any Minutes of Settlement, Order, or Final Judgment is hereby dispensed with.

e. that any existing tenancy or rental agreement in respect of 946 Danforth Road between Neallos Wedemire and any person occupying 946 Danforth is hereby varied to replace Neallos Wedemire as landlord with Myrtle Wedemire as landlord, and any rents payable to Neallos Wedemire under those agreements are hereby payable to Myrtle Wedemire, and any further rent payments received by Neallos Wedemire after the date of this Order shall be immediately paid by Neallos Wedemire to Myrtle Wedemire, and Neallos Wedemire is hereby prohibited from collecting rent payments from any such tenants occupying 946 Danforth Road.

[138] The PGT also seeks an order that Myrtle be permitted to encumber 946 Danforth up to the amount of $150,000 without the consent of Charles. This issue was not discussed in the course of the trial or in the closing submissions. I do not see it to be within the scope of the issues before the court nor have I been taken to any consent by Charles on the point. For these reasons, I do not think it is appropriate that such an order be granted at this time. This head of relief is adjourned to be returned on case conference before Justice Stevenson or her designate by either Charles Wedemire or the Public Guardian and Trustee on notice of at least 10 business days.

[139] Similarly, I would not grant the order that Myrtle may move for an order of vacant possession in respect of 946 Danforth if Myrtle determines that there are no existing tenancy or rental agreements at this point. This is hypothetical at this point and there has been no evidence led or submissions made as to what third party interests (such as mortgagees) could be affected by such an order. In addition, it is not clear what Charles position is on such an order.

Pre and post judgment interest and costs

[140] The PGT and Charles shall serve and file their cost submissions no later than 14 days after the release of this decision. Neallos shall file his submissions within 14 days thereafter. Counsel and Neallos shall file their submissions as to pre and post judgment interest at the same time.

Harvison Young J.

Released: November 22, 2017

CITATION: Wedemire v. Wedemire, 2017 ONSC 6891

COURT FILE NO.: FS-14-19800-00

DATE: 201711XX

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHARLES WESLEY WEDEMIRE

Applicant

– and –

MYRTLE BEATRICE WEDEMIRE

Respondent

REASONS FOR JUDGMENT

Harvison Young J.

Released: November 22, 2017

[^1]: To avoid confusion, I will refer to them by their first names.

[^2]: Order of Paisley J., dated April 2, 2014. The application was dated October 7, 2013.

[^3]: See the following: Orders of Kiteley J. dated February 3, 2016, March 22, 2017, order of Glustein J. dated September 20, 2016, order of Stevenson J. dated March 22, 2017

[^4]: A medication used to treat memory issues

[^5]: On consent, the evidence in chief of all parties was introduced by affidavit as set out in my order of April 26, 2017. Each party was entitled to supplement their affidavit evidence with up to 30 minutes viva voce evidence. The affidavit filed by Neallos was unsworn.

[^6]: Scarborough Hospital Geriatric Assessment and Intervention Network Clinic