Court File and Parties

Court File No.: 81/16 Date: 2018-09-10 Ontario Superior Court of Justice

Between: Ricky Joseph Roach, Applicant – and – Claudette Todd, Respondent

Before: T. A. Heeney J.

Counsel: Self-represented (for the Applicant) Craig J. Potter, for the Respondent

Heard: June 28 & 29, 2018 at Woodstock

Reasons for Judgment

[1] The applicant and respondent are siblings. Their father was William Roach (“Willie”), who was born May 11, 1922, and died February 28, 2016 at the age of 93. The respondent was the executrix under his will dated July 11, 2000, but was also his attorney under a Continuing Power of Attorney for Property (“POA”) executed by Willie on June 8, 2010. That document named her brother Clifford Roach, jointly, as his attorney as well, but on the evidence he never played any role in the management of his father’s affairs. Rather, it was the respondent who exercised sole control of Willie’s financial affairs from the time the POA was executed until his death.

[2] This proceeding is a contested passing of accounts relating to the management of Willie’s estate from the date of death forward, but has been combined with a contested passing of accounts under s. 42(1) of the Substitute Decisions Act, S.O. 1992, c. 30 as his attorney under the POA. The latter was ordered by George J. on September 14, 2017.

[3] The estate accounts have been prepared in the proper form for the period February 28, 2016 to September 27, 2016, with the assistance of legal counsel, Lerners LLP, and appear to be in order. However, they show very little money in the estate. Total receipts in the Capital Account were $8,640.77 and total disbursements were $8,281.77. There were no receipts or disbursements in the Revenue Account.

[4] The respondent has failed to provide any proper accounts for her management of Willie’s estate under the POA. It is there where the questionable transactions that lead to the present court application were made. Willie’s CIBC bank account records show that he had a balance of $107,982.39 on October 1, 2010. By February 29, 2012 he had only $2,961.31 left. This was despite ongoing pension income being received of $2,333.05 per month up to and including October 2011, which was then reduced to $1,544.68 per month as a consequence of the death of Willie’s wife (the mother of the parties) Madeleine Roach, on September 8, 2011. The applicant asks the simple question: where did all the money go? He asks this question on his own behalf, but also on behalf of his many other siblings, who are equal residuary beneficiaries under Willie’s will, and who would have suffered a loss in the event that moneys were wrongfully taken from Willie’s bank account while he was alive.

[5] I will outline the basic fact of this case. I do not propose to review the many disagreements and arguments that arose during the period in question, or other peripheral facts that are important to the parties but are not particularly relevant to the issues in question. There was, without doubt, a great deal of acrimony among the respondent and most of her other siblings throughout, but I will only review the facts that are central to the resolution of the issues before the court.

[6] Willie had been a barber all of his working life, and passed the business to the respondent many decades ago. He suffered a stroke in 2006, and his driver’s license was revoked shortly thereafter. In 2008 he and Madeleine moved to Cheticamp, Cape Breton Island to stay in a residence owned by their son Ron Roach. While there, Madeleine was diagnosed with dementia. Willie and Madeleine returned to Ontario in the summer of 2009, and took up residence at the Langdon Retirement Villa.

[7] Following their return, they opened a bank account at the CIBC on November 23, 2009, in the names of Willie, Madeleine and the respondent. It was an “everyday chequing” account, and the account description found at tab 2 of Ex. 1C does not show it to be a joint account.

[8] On June 8, 2010 Willie executed the POA described above. He also executed a Power of Attorney for Personal Care on the same date, which again appointed Clifford Roach and the respondent as his attorneys (in the event his wife was deceased or incapable). This was later replaced with a new one dated August 22, 2011, which appointed the respondent as the sole attorney for personal care.

[9] In the summer of 2011 Willie suffered a series of falls at Langdon, and was admitted to Woodstock General Hospital. On July 15, 2011 he was given a Mini-Mental State Examination (MMSE) and scored 10 out of 30. This put him at the threshold between moderate Alzheimer’s disease (10 to 20) and severe Alzheimer’s disease (less than 10). He was given a further MMSE on August 29, 2012 and scored 7 out of 10, putting him in the severe category at that point in time.

[10] In the Assessment authored by his Case Manager Jennifer Palmer dated July 25, 2011, she makes the following comments: “client is vague and confused”; “client not oriented to day, month or year”; “Client deemed incapable of making his own placement decisions due to cognitive impairment - client lacks insight/understanding of his care needs”.

[11] The plan was to return Willie to Langdon on a temporary basis, while the Community Care Access Centre searched for a placement in a care facility for both Willie and Madeleine, who at this point was said to be suffering from “significant dementia”.

[12] The plan did not go well. After only a few days, Langdon called the Case Manager to report that Willie was refusing care, refusing meals, not cooperating with staff, not using his walker and swearing at staff. He was being physically aggressive, striking out at staff, and refusing to allow personal care to be provided. Because of all of this, he was sent back to Woodstock General Hospital, and was not welcome to return to Langdon.

[13] On August 13, 2011, the respondent moved both Willie and Madeleine into her own home. The respondent had previously made arrangements for her sister Priscilla to fly in from British Columbia at the end of July 2011, to assist in caring for their parents. The respondent testified that she was unable to do so herself, because she had the barber shop business to run. Priscilla remained until February 26, 2012, when she abruptly moved out after what the respondent called “a big blow out”.

[14] On September 8, 2011, Madeleine died. Willie continued to reside with the respondent.

[15] On February 24, 2012 at 8:49 p.m. Willie was admitted to Woodstock General Hospital with a subdural hematoma, described in evidence as “bleeding on the brain”. The hospital records record that he had had a fall three days previous, and the respondent testified that he had fallen getting out of the bathtub, striking his head.

[16] On February 25, 2012, the applicant went to the hospital to visit Willie and found Priscilla in his room, crying heavily. She left the next day as previously described.

[17] Also on February 25, 2012, the respondent prepared a document at her home bearing that date, which reads as follows:

I, Willie Roach, give the sum of $57000.00 to my daughter Claudette as a gift for taking her Mother and I into her home to live when no one else in the family would take us in.

[18] She testified that she did so on Willie’s instructions, received earlier that same day. After preparing the document, she went to the bank, opened a new account with her bank card, and transferred $57,000 from Willie’s account into it. She then brought that document to Willie’s hospital room. No-one else was in the room when this was signed by Willie, other than Peter Todd, who was the respondent’s fiancée. He witnessed Willie’s signature.

[19] The bank transfer is posted in the account records as having occurred on February 27, 2012, although the respondent testified that she transferred the money before the gift document was signed, and on the same day it was signed, which was February 25, 2012. This transfer reduced the balance in Willie’s account from $59,993.14 to $2,993.14.

[20] Willie remained at Woodstock General Hospital until March 29, 2012, when he was transferred to Leisure World for respite care while the respondent was preparing for her wedding to Peter Todd. Shortly after the wedding, Willie came back to live with the respondent, and remained there until the beginning of October 2012. At that point he was transferred to People Care in Tavistock, where he remained until his death.

[21] That is an outline of the general background facts.

[22] Before moving to a consideration of the items in dispute, it is necessary to deal with the respondent’s allegation that she was not acting as Attorney for Property for Willie during the relevant time. She alleges that Willie was doing much of his own banking, and managing his own affairs, and she was just helping him out from time to time. I do not accept this evidence. The Continuing Power of Attorney was executed by Willie on June 8, 2010 and was in full force and effect from that time until his death. While it stated that the power of attorney “may be exercised during any subsequent legal incapacity” on Willie’s part, it was not conditional on such incapacity. Instead, it expressly came into full force and effect on the date it was signed and witnessed.

[23] The respondent had control of the joint bank account since November 23, 2009 when her name was placed on the account as one of the account holders, and every single one of the cancelled cheques that have been produced from that account, dating from October 6, 2010 to February 2, 2015, were signed by her. Cheques prior to that period are apparently not available from the bank. The cheques that have been produced, for the most part, were written to pay bills for Willie, which is exactly what one would expect an attorney to do. One might ask in what capacity was she paying Willie’s bills if not as his attorney? The medical evidence makes it clear that Willie was suffering from dementia, and was not capable of managing his own affairs or making his own placement decisions, and therefore he had need of someone to manage his financial affairs. That someone was the respondent.

[24] It is significant that the respondent was also actively acting as Willie’s Attorney for Personal Care throughout this time. As already noted, the Attorney for Personal Care signed by Willie on June 8, 2010, which appointed Clifford Roach and the respondent as his joint attorneys, was replaced with a new one dated August 22, 2011. That new document appointed the respondent solely as his Attorney for Personal Care.

[25] It was she whom Willie’s caregivers consulted when decisions needed to be made. In that capacity, she restricted the ability of any other member of the family to get information about Willie’s condition, by giving explicit instructions to that effect. This is documented in Ex. 5 Tab D, where a note was made on Willie’s Individual Care Plan at Woodstock General Hospital as follows: “May 28/12 – Give info only to Claudette or her spouse Peter. Refer all other requests to her.” By giving those instructions to the hospital, the respondent was effectively controlling all access by her siblings to information about the medical condition of their father. This illustrates the degree to which the respondent had gone in taking over control of Willie’s life, in all respects.

[26] I now move to the issues in dispute. As outlined at the conclusion of his cross-examination, the applicant challenges the validity of the following expenditures in the records of Willie’s CIBC bank account:

• The $57,000 “gift”;
• Payments of $500 per week or more, allegedly to Priscilla to compensate her for providing care for Willie and Madeleine, and later for Willie alone;
• A payment of $5,028.50 to Mike’s Electric on February 2, 2012, to satisfy an invoice dated November 29, 2011 for installing a new furnace and air conditioner at the respondent’s residence;
• A payment of $115 on April 2, 2012 to the Town of Orangeville, to pay for the marriage license for the respondent and Peter Todd;
• A total of $3,362.64 in US dollar cash withdrawals between June 10, 2013 and December 21, 2015; and,
• Various amounts spent for groceries and restaurants.

[27] I will deal with the alleged gift of $57,000 first.

[28] Where the potential for domination inheres in the relationship between the transferor of a gift and the transferee, the presumption of undue influence applies: Foley v. McIntyre, 2015 ONCA 382. In Geffen v. Goodman Estate, [1991] S.C.J. No. 53, at para. 28, Wilson J. described the circumstances under which this presumption arises:

What are the factors that go to establishing a presumption of undue influence? This question has been the focus of much debate in recent years. Equity has recognized that transactions between persons standing in certain relationships with one another will be presumed to be relationships of influence until the contrary is shown. These include the relationship between trustee and beneficiary ( Ellis v. Barker (1871), 7 Ch. App. 104 ); solicitor and client ( Wright v. Carter, [1903] 1 Ch. 27 ); doctor and patient ( Mitchell v. Homfray (1881), 8 Q.B.D. 587 ); parent and child ( Lancashire Loans, Ltd. v. Black, [1934] 1 K.B. 380 ); guardian and ward ( Hylton v. Hylton (1754), 2 Ves. Sen. 547, 28 E.R. 349 ); and future husband and fiancee ( In re Lloyds Bank, Ltd., [1931] 1 Ch. 289 ). Beginning, however, with Zamet v. Hyman, [1961] 3 All E.R. 933, it came to be accepted that the relationships in which undue influence will be presumed are not confined to fixed categories and that each case must be considered on its own facts. Since then it has been generally agreed that the existence of some "special" relationship must be shown in order to support the presumption although what constitutes such a "special" relationship is a matter of some doubt. In Snell's Principles of Equity (1982), for instance, it is stated at p. 540 that the presumption applies when the transaction has been effected between parties in a fiduciary relationship to one another. Others suggest that influence flows naturally from confidential relationships: see Canadian Encyclopedic Digest (Western), Title 67, para. 94. In Lloyds Bank Ltd. v. Bundy, [1974] 3 All E.R. 757, this issue was canvassed in some detail by Sir Eric Sachs who indicated that the existence of an advisory relationship is relevant to the determination. He went on to say at p. 767:

Such cases tend to arise where someone relies on the guidance or advice of another, where the other is aware of that reliance and where the person on whom reliance is placed obtains, or may well obtain, a benefit from the transaction or has some other interest in it being concluded.

[29] Wilson J. continues at paras. 40 and 42 – 45:

What then is the nature of the relationship that must exist in order to give rise to a presumption of undue influence? Bearing in mind the decision in Morgan, its critics and the divergence in the jurisprudence which it spawned, it is my opinion that concepts such as "confidence" and "reliance" do not adequately capture the essence of relationships which may give rise to the presumption. I would respectfully agree with Lord Scarman that there are many confidential relationships that do not give rise to the presumption just as there are many non-confidential relationships that do. It seems to me rather that when one speaks of "influence" one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. I disagree with the Court of Appeal's decision in Goldsworthy v. Brickell, supra, that it runs contrary to human experience to characterize relationships of trust or confidence as relationships of dominance. To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well. The point is that there is nothing per se reprehensible about persons in a relationship of trust or confidence exerting influence, even undue influence, over their beneficiaries. It depends on their motivation and the objective they seek to achieve thereby.

What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.

Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. From the court's point of view this added requirement is justified when dealing with commercial transactions because, as already mentioned, a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains. Moreover, it can be assumed in the vast majority of commercial transactions that parties act in pursuance of their own self-interest. The mere fact, therefore, that the plaintiff seems to be giving more than he is getting is insufficient to trigger the presumption.

By way of contrast, in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.

Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own "full, free and informed thought". Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

[30] I am of the view that the relationship between Willie and the respondent was such that the potential for dominance existed, such that the presumption of undue influence arises. I arrive at that conclusion for the following reasons:

• The respondent was actively acting as Willie’s attorney pursuant to the POA, and in that regard is deemed to be in a fiduciary relationship with him, pursuant to s. 32(1) of the Substitute Decisions Act, 1992, S.O. 1992 c. 30;
• The respondent was also actively acting as Willie’s attorney for personal care, and therefore had control over decisions affecting his day to day life, giving her the ability to exert dominance over him;
• Willie was residing in the respondent’s home and was under her care, and was therefore subject to her power to decide whether he would be allowed to continue to do so or not. This vulnerability is particularly important given the respondent’s testimony, described below, that Willie may have thought that if he paid her, she would take him home; and,
• Willie was relying on the respondent to prepare the document of gift for him, under which she stood to reap a substantial financial windfall.

[31] The presumption of undue influence therefore arises, and it falls to the respondent to rebut it.

[32] The respondent testified that when she was at the hospital with Willie, she told him that Priscilla was leaving, and that it would create a problem for her because she lived alone and worked full time and somebody needed to be with him in the daytime. She told him that the minute she gets married on April 28, he is coming back to live with her. Then Willie said he wanted to give her money for all the work she did. She didn’t know if he thought that if he paid her she could take him home, but she told him she still can’t take him home. He said “you were good to us” and wanted her to take the money out. She said she was not doing it unless he signed a letter. She knew there would be a problem with the family and wanted to be able to prove he gave it to her.

[33] So she typed up the letter at home. She then went to the bank, opened a new account, and transferred $57,000 into it from Willie’s account. She contacted her fiancé and told him about the money and the letter, and he came down from Toronto that evening to witness Willie signing the document. She said she put Peter Todd’s name on the document because he was to be the witness, although she said that if someone else was there in the hospital to witness it, she would “grab them”. She had no concern about her father’s frame of mind, and said he was himself, the same as he always was, talkative, cheery and sitting up.

[34] Peter Todd testified that the respondent called him in the early afternoon of February 25, 2012 to tell him about the $57,000, and that is the first he heard of it. He travelled from Toronto to Woodstock that same day to act as a witness. He described Willie as being “fine, alert, happy to see us … the same old Willie”. Willie asked about the letter, which they had already prepared. He looked at the document numerous times before signing it. He did not appear confused. The respondent read it to him three times and Peter Todd read it to him once, to make sure he understood and give him chance to decline if he wanted to. He signed without hesitation. He said they looked to see if there was a nurse who could witness the document and “there was no one”.

[35] It is that latter statement that causes me to disbelieve Peter Todd’s entire account of this episode. The respondent testified to the same effect, and I reject her evidence for the same reason. This is an active, busy hospital, with scores of nurses on duty at any given time, around the clock. It is completely unbelievable to suggest that they looked for a nurse to witness the document but couldn’t find one. I am satisfied that they chose not to get anyone else involved because they did not want any third party to know what they were doing, or to have the opportunity to explain to Willie what it was he was signing. This is precisely why the respondent typed Peter Todd’s name on the document as the witness when she prepared the document at home in advance. If her preference was to have someone else witness Willie’s signature, she would have left the name of the witness blank.

[36] Another reason for disbelieving their evidence is the veil of total secrecy that they pulled over this transaction. It was not disclosed to the applicant or anyone else until the applicant, frustrated that his repeated demands for financial disclosure were being ignored, commenced these proceedings. On March 9, 2017, Mitrow J. ordered the respondent to forward to the applicant the CIBC bank records from June 8, 2010 forward. On June 23, 2017, in compliance with that order, the respondent provided the bank records which revealed the February 27, 2012 transfer of $57,000, and at the same time she filed an affidavit which included as an exhibit a copy of the letter of gift signed by Willie dated February 25, 2012.

[37] I draw the inference that the respondent kept this “gift” secret for over five years because she had a guilty mind, and knew that it was not legitimate. I am also satisfied that she never would have revealed it at all had she not been compelled by court order to disclose Willie’s bank records.

[38] It is significant that the letter was typed up by the respondent, who was the beneficiary of the gift, rather than by the donor himself. It is not a long document, and consists of one sentence only, containing 36 words. If Willie was capable of signing his own name, he should have been capable of writing this letter of gift himself, if that was his real intention.

[39] In Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, Price J. said the following, at paras. 92 – 93:

In the jurisprudence dealing with testamentary capacity, the Court has stated:

If a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased. [ Riach v. Ferris, [1934] S.C.R. 725 ]

There is no reason why this reasoning should not apply equally to Powers of Attorney.

[40] In my view, there is equally no reason why this reasoning should not apply to a document purporting to evidence a gift, which is prepared by the very person who is to take the benefit under the gift, and is simply presented to the grantor for signature.

[41] I also observe that this transfer of $57,000 to the respondent is inconsistent with Willie’s will, which provided that the residue would be divided equally among his children and Marilyn Hamel Burson. Because this transfer gave almost all of Willie’s remaining life savings to the respondent, it left almost nothing to be divided among the respondent’s siblings.

[42] I am also not satisfied that the respondent has proven that Willie had the capacity to make this gift, and that it was the result of his own full, free and informed thought. He had been admitted to the hospital only the day before with bleeding on the brain following a head injury, and was still convalescing. He had previously been observed to be vague and confused, not oriented to day, month or year, and deemed incapable of making his own placement decisions due to cognitive impairment, and was rated, by the MMSE, to be on the borderline of severe Alzheimer’s disease.

[43] It is significant that Willie received no legal advice, nor did he have the opportunity to consult with anyone, before making this gift. Given the magnitude of the gift, independent advice was, in my view, called for. It is important not to lose sight of the fact that, as his attorney for property, the respondent was under a fiduciary duty to Willie. That means that she had a duty to act in his best interests. Clearly, it was not in Willie’s best interests to divest himself of almost his entire estate, thereby leaving himself in a position where he would have no capital to draw upon should the need arise in the future. In my view, it was a breach of her fiduciary duty for the respondent to have allowed Willie to make this gift and to have facilitated the transaction herself, without having first arranged for Willie to obtain independent legal advice, to ensure that he was fully aware of the consequences of his actions.

[44] I note in passing that if Willie’s intention in paying this large sum of money to the respondent was to compensate her for taking him in and giving him a place to live, he did not get much for his money. He was moved to a nursing home a mere eight months later, where he stayed until the date of his death.

[45] I conclude that the respondent has failed to rebut the presumption of undue influence. The gift is, therefore, set aside, and the respondent shall repay the sum of $57,000 to Willie’s estate.

[46] I now move to the series of $500 withdrawals, allegedly made for the purpose of compensating Priscilla for her caregiving services.

[47] The following withdrawals from Willie’s bank account have been called into question:

• August 3, 2011: $500;
• August 15, 22 and 29, 2011: $400 each;
• September 19 and 28, 2011: $400 each;
• October 7 and 14, 2011: $400 each;
• October 17, 2011: $500;
• October 26 and 28, and November 1, 2011: $400 each;
• November 10 and 14, 2011: $500 each;
• November 23, 2011: $400;
• November 30, December 7, 8, 9 and 19, 2011: $500 each;
• December 30, 2011: $700;
• January 5, 9, 18, 26 and 30, 2012: $500 each;
• February 6, 13, 21 and 27, 2012: $500 each;
• March 5, 9 and 23, 2012: $500 each;
• April 2 and 26, 2012: $500 each;
• June 4 and 8, 2012: $500 each.

[48] It should be noted that there are other large withdrawals that have not been accounted for by the respondent, such as $2,000 on September 9, 2011 and $1,500 on June 29, 2012. However, these were not raised by the applicant during the trial, nor was the respondent confronted with them on cross-examination so that she would have an opportunity to explain them. In those circumstances, it would be unfair of me to consider them. Accordingly, I will deal only with the payments that appear to have been earmarked for Priscilla.

[49] The respondent testified that Willie and Priscilla came to an agreement that he would pay her $500 per week to provide care for him. While the respondent made many or most of the bank withdrawals for this purpose, she said that Willie made some himself as well. As to why many of the withdrawals were for $400, not $500, she said that she would have given Priscilla $400 from the bank, and Willie would have topped that up to $500 from money on hand in his wallet.

[50] However, on her own evidence, Priscilla left her home and ceased to care for Willie as of February 26, 2012. As to why these withdrawals continued for months thereafter, she testified that when Priscilla left, she claimed that she was still owed $2,000. The respondent said she gave Priscilla $1,200 out of her own money, then made two withdrawals on May 5 and 9, 2012 to pay herself back, $500 being the limit she could withdraw in one transaction.

[51] I pause to note that this latter statement is contradicted by the bank statements themselves, which show many withdrawals in excess of $500.

[52] To continue, the respondent testified that after paying Priscilla the $1,200, she still owed her $800. So she got that money out of the bank in increments, and then went to “Union Station” (sic) to get a draft, and proceeded to pay Priscilla the balance.

[53] There are many problems with this evidence. To begin with, her explanation about the discrepancy between the $400 withdrawals and the $500 payments that were allegedly due to Priscilla makes no sense. If money was being withdrawn for the specific purpose of paying Priscilla, it defies logic that an insufficient amount would be withdrawn, requiring that amount to be topped up from Willie’s spending money, thereby depleting the money he had on hand for day to day expenses. It further defies logic that this could have happened a total of eleven different times.

[54] Furthermore, the period from August 13, 2011 to February 26, 2012 is 197 days, or 28 weeks. If there was an agreement to pay Priscilla $500 per week, she would have been entitled to receive a total of $14,000. However, the payments listed above total $17,600. As of the end of February 2012 when Priscilla left, a total of $14,100 had been withdrawn from Willie’s bank account. Thus, she would have been overpaid by the sum of $100 at this point. The respondent’s explanation - that she continued to make withdrawals in March, April and June 2012 for the purpose of completing payment to Priscilla - is, therefore, false. Those additional withdrawals amount to $3,500 and, having rejected the respondent’s explanation, I can only conclude that she withdrew this money for her own use.

[55] In Aragona v. Aragona, 2012 ONCA 639, Epstein J.A. said the following, at para. 21:

Pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30, a guardian of property has a fiduciary obligation to carry out his or her obligations with honesty and due care and attention. The core of these obligations includes the duty to be in a position at all times to prove the legitimacy of disbursements made on behalf of the estate: Widdifield on Executors and Trustees, 6th ed. (Scarborough, ON: Thomson Carswell, 2002) at p. 13-1.

[56] The respondent has failed to produce any receipts from Priscilla, or to call her as a witness to prove the legitimacy and amount of these expenditures. The applicant attempted to file a letter that Priscilla wrote on March 25, 2013 to a government agency in British Columbia, for the purpose of clarifying her 2011 Income Tax Return. That letter set out how much she was paid by the respondent from August to the end of December 2011. I ruled that this was inadmissible hearsay. Priscilla being alive and able to testify, such a letter could never satisfy the test of necessity. I cannot, therefore, consider it. I note in passing, though, that had it been admitted, it would not have been helpful to the respondent.

[57] Despite the problems with the respondent’s evidence, I am satisfied that a stipend of some kind was paid to Priscilla in return for her services. A reasonable, perhaps even generous, amount would be the amount initially paid to her, of $400 per week. Thus, this total expenditure is allowed at $11,200. The respondent shall repay the balance of $6,400.

[58] The next item to consider is the payment of $5,028.50 to Mike’s Electric on February 2, 2012, to satisfy an invoice dated November 29, 2011 for installing a new furnace and air conditioner at the respondent’s residence.

[59] The respondent testified that while Willie was living with her, her old furnace stopped working. According to her, Willie told her to put a new one in, and insisted on paying for it himself.

[60] In Foley v. McIntyre (supra) at paras. 29 – 30, Juriansz J.A. discussed the law pertaining to gifts, and in particular the evidence necessary to rebut the presumptions of resulting trust and undue influence. He said this:

The common law requires corroborating evidence to rebut the presumptions. The corroborating evidence can be direct or circumstantial, and it can consist of a single piece of evidence or several pieces considered cumulatively: Burns Estate v. Mellon (2000), 48 O.R. (3d) 641, [2000] O.J. No. 2130 (C.A.), at para. 29.

In addition, where the donor is deceased, the Evidence Act, R.S.O. 1990, c. E.23 requires corroborative evidence. Section 13 provides:

13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[61] There is no corroboration of this alleged gift of a new furnace and air conditioner. The gift, therefore, fails, and the respondent shall repay the sum of $5,028.50.

[62] The same reasoning applies to the next item, the payment of $115 on April 2, 2012 to the Town of Orangeville, to pay for the marriage license for the respondent and Peter Todd. They both testified that this was a gift from Willie to them. As the recipients of the gift, the onus is on them to provide corroboration of this gift. Since there is none, the gift is disallowed, and the respondent shall repay $115.

[63] The next item consists of a total of $3,362.64 in US dollar cash withdrawals, made between June 10, 2013 and December 21, 2015. The respondent testified that she sometimes took US cash from Willie’s account when she was “in a hurry”, but would replace it afterward. I have reviewed each of the many transactions of this kind and, except as described below, there is not a single instance where money was deposited back into Willie’s account after a US money withdrawal was made. The sole instance where deposits were made is in July 2015. On July 13, there was a deposit of $206, followed by a US dollar withdrawal of $261.36. On July 16, there was another US dollar withdrawal of $396.51. On July 17 there was another US dollar withdrawal of $265.26, followed by a deposit of $287 the same day.

[64] None of this accords with the respondent’s explanation. To begin with, it shows withdrawals of $923.13 as against deposits of $493, which does not amount to replacing that money. Secondly, if the respondent already had the money on hand that she deposited, why would she need to withdraw money from Willie’s account at all?

[65] I reject the respondent’s explanation as lacking in credibility. She shall repay the amount of $3,362.64.

[66] Finally, the applicant has challenged, in a general way, various expenditures made for food and restaurants, but failed to do so with any specificity. He did not challenge the respondent during cross-examination on any such expenditures, which would have given her the opportunity to explain them. While many such expenditures may well be suspect, I am not equipped, on the evidence, to deal with them.

[67] To summarize, it is ordered that the respondent shall repay the estate of William Roach the total sum of $71,906.14. Upon payment of that sum, her accounts as attorney for property of Willie shall be deemed to have been passed. In the circumstances, she is not entitled to any compensation.

[68] That sum shall then be divided among the residual beneficiaries in accordance with the provisions of Willie’s will. Since this payment and distribution will radically alter the accounts of the estate, revised accounts will have to be prepared. The passing of accounts as executrix of Willie’s estate shall be adjourned, returnable before me on a date to be arranged with the Trial Coordinator when I am presiding in Woodstock, following distribution of the repaid funds.

[69] If the applicant wishes to pursue the issue of costs, I will hear oral submissions on the matter, at 9 a.m. on a date when I am presiding in Woodstock, to be arranged with the Trial Coordinator.

“T. A. Heeney J.” T. A. Heeney J. Released: September 10, 2018