Court File and Parties

BARRIE COURT FILE NOS.: CV-18-0114-00 and CV-18-0416-00 DATE: 20181114 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jerry Bellefeuille Applicant – and – Irene Bellefeuille, Jacqueline Zinn and The Public Guardian and Trustee Respondents

Counsel: Judith Turner, for the Applicant Corey Wall, for the Respondent, Jacqueline Zinn

AND BETWEEN:

Jacqueline Mary Zinn Applicant – and – Irene Bellefeuille, Jane McAnally, John Bellefeuille, Jerry Bellefeuille and John Tromblay Respondents

Counsel: Corey Wall, for the Applicant Judith Turner, for the Respondent, Jerry Bellefeuille

HEARD: October 26, 2018

Reasons for Decision

VALLEE, J.:

Nature of the Applications

[1] Irene Bellefeuille, who is 91, has several children. Jerry, Jacqueline and Jane are three of them. This matter concerns two applications. The first application is brought by Jerry for an order appointing him as guardian of Irene’s property and person. The second application is brought by Jacqueline for an order that she, as the named attorney pursuant to a power of attorney for Irene’s property and person, may exercise custodial powers over Irene, determine her living arrangements and provide for her shelter and safety, including, if necessary, relocating Irene from Barrie to Jacqueline’s residence in Kitchener. Both applicants request an order declaring Irene incapable of managing her property and personal care. As a result, decisions must be made on her behalf by a person authorized to do so.

[2] Based on the capacity assessments dated November 22, 2017 and the concurrence of the parties, I find that Irene is incapable of managing her property and personal care. As a result, decisions must be made on her behalf by a person authorized to do so.

Issues

[3] Should the power of attorney, which appointed Jacqueline as attorney, be terminated?

[4] If the power of attorney is terminated, should Jerry Bellefeuille be appointed guardian of Irene’s property and personal care?

Should the power of attorney, which appointed Jacqueline as attorney, be terminated?

Applicable Law

[5] An attorney is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith for the incapable person’s benefit. (see Substitute Decisions Act, 1992 S.O. 1992, C 30 s. 32(1) and 38(1))

[6] There must be strong and compelling evidence of misconduct or neglect on the part of the donee duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney. (See Teffer v. Schaefers, 2008 CarswellOnt 5447 para 21 quoting *Re Hammond Estate* (1998), 25 E.T.R. (2d) 188 at para 31)

[7] A guardian/attorney has a duty to be in a position, at all times, to prove the legitimacy of disbursements made on behalf of the estate of the incapable person: *Aragona v. Aragona* (Guardian of), 2012 ONCA 639 at para 21, citing Carmen S. Thériault, Widdifield on Executors and Trustees, 6th ed (Toronto: Thomson Reuters Canada, 2002, loose-leaf), ch 13 at s 13-1.

Jacqueline’s Position

[8] Ten years ago, Irene was diagnosed with dementia and Alzheimer’s disease. Jacqueline, who lives in Kitchener, has managed Irene’s property since 2005. Irene lives in an apartment with Jane in Barrie. Jane is paid $1,200 from Irene’s funds to care for Irene and cover part of the rent. Jacqueline states that she became concerned that Jane was not providing adequate care for Irene. She was concerned about the following, among other things:

(a) Irene’s blood pressure was not being taken daily;

(b) Irene’s glucose levels were not being appropriately monitored;

(c) Irene had been diagnosed with a yeast infection but proper treatment protocols were not being followed;

(d) Irene’s fingernails were allowed to get too long. She was not being reminded to wash her hands after using the washroom. Fecal matter was under her nails;

(e) Appropriate efforts were not being taken to maintain Irene’s weight and muscle tone; and,

(f) Irene’s prescriptions were not being filled in a timely manner.

[9] Jacqueline states that she decided that Irene should live with her in Kitchener so that she could fulfil her duties as attorney. On October 2, 2017, Jacqueline attempted to visit her mother at the apartment. Jane would not allow her to enter and ordered her to stay away. Jerry attended at the apartment and threatened to begin legal proceedings. Jacqueline states that she called the police for assistance. They spoke to Irene and asked her if she wanted to go with Jacqueline. Irene’s answer was no. Jacqueline states that Irene gave this answer because Jane and Jerry had been influencing her.

[10] Jacqueline states that she is no longer able to visit her mother. She paid for Irene to have a landline but it has been disconnected. She cannot speak to her mother on the phone. It is impossible for her to carry out her duties as attorney under the circumstances. Accordingly, Irene should move from Jane’s apartment to live with Jacqueline in Kitchener.

[11] Jacqueline states that Jerry and Jane frequently accused her of mismanaging Irene’s money. Jacqueline states that she has taken Irene on various excursions and used some of Irene’s money to pay for the gas. This included the gas needed for Jacqueline to drive from Kitchener to Barrie. Previously, when she visited Irene at Jane’s apartment, she used some of Irene’s money to pay for groceries and various items.

[12] Jacqueline acknowledged that she bought a freezer and a stove for her own house with Irene’s money. She stated that she did this to prepare to host Irene.

[13] Jacqueline states that her practice with respect to managing Irene’s money was that she transferred it into her own personal account where it became co-mingled with her own funds. She did this for security reasons. Other people would take Irene and her bank card to the bank and attempt to withdraw money. Jacqueline stated that she would allow Irene’s money to accumulate and then would put it into a tax-free savings account.

[14] Jaqueline conceded that it was not appropriate for her to deposit Irene’s funds into her personal account. She has managed Irene’s money in the same fashion that she manages her own. In the event that she is successful in her application, she will no longer co-mingle the money.

[15] Jacqueline states that she was ordered to provide an accounting with respect to Irene’s money, which she has done. It is not a perfect accounting but substantial time has passed since 2005.

Jerry’s Position

[16] Jerry states that Jacqueline receives old age Security and Canada Pension Plan payments. She is not financially stable. Irene receives income from a pension. She has a monthly surplus of $1,000. Jaqueline stated at her examination for discovery that she wanted to move Irene to Kitchener so that Jerry and Jane would stop questioning her financial management. Jaqueline was putting her own self-interest above Irene’s. She just wanted the financial inquiries to end.

[17] On October 2, 2017, without calling first, Jacqueline arrived at the apartment to take Irene, who refused to go and was very upset. Jaqueline called the police in an attempt to force Irene to go with her. She stated that she hoped the police would enforce the power of attorney so she could take Irene if she wanted to.

[18] Jerry states that the only evidence of concern with respect to Irene’s care is in Jaqueline’s affidavit which is self-serving. There is no independent evidence. Jerry provided three letters from people who know Irene [1] and state that she is a happy and healthy senior, she is treated with dignity and respect at all times and Jane is an excellent caregiver.

[19] Jaqueline has raised an issue with respect to Irene’s blood pressure. There is nothing to suggest that her blood pressure should be taken daily. Jaqueline has raised an issue with respect to Irene’s glucose level. Irene’s diabetic but is not insulin dependent. Interestingly, Jaqueline gave Irene a box of chocolates for Valentine’s Day.

[20] Jaqueline’s concerns about people trying to withdraw money from Irene’s account were not justified. She stated that she instructed the financial institution to not provide information to anyone regarding Irene’s account. Furthermore, under cross-examination, Jaqueline gave an undertaking to provide a full accounting which was to include her personal account.

[21] Jane swore an affidavit dated March 6, 2018. In it she stated, among other things, that the landline has never been disconnected, nor has the number been changed.

[22] Jaqueline provided a letter dated February 13, 2018 from Meridian Credit Union. It states that deposits totalling $70,240.17 have been made to Irene’s credit. Irene’s bank account statement from March 31, 2017 to June 30 to 2017 shows that amounts between $1,008.50 and $1,200 have been transferred out each month.

[23] Jaqueline was ordered by McCarthy, J. to provide an accounting within 45 days. Although the accounting should have been provided in July, it was not delivered until October 22, 2018. The accounting is inadequate. It begins in 2014, not 2005. There are no backup bank statements. The accounting does not include anything relating to Jaqueline’s personal account. The $70,000 is not listed. The evidence shows that Irene’s money was spent on repairs for Jane’s car, new tires and appliances for Jaqueline’s home, among other things. Jaqueline also stated that she has used Irene’s money to cover her legal fees in this litigation.

Analysis

[24] As a fiduciary, Jaqueline was required to put Irene’s interests ahead of her own. She has not done this. She used Irene’s money to purchase things for herself, most notably, a freezer and stove for her residence in Kitchener. I do not accept Jaqueline’s explanation that she purchased these appliances so that she could properly host Irene. I find that she purchased these appliances for her own use. Irene lived in Barrie with Jane and visited Jaqueline only from time to time.

[25] Jaqueline was required to keep Irene’s funds separate from her own and keep appropriate records as to Irene’s income and the expenditure of her money. She has not done this. I do not accept her explanation that she did the best that she could because she managed Irene’s money in the same manner that she managed her own. Jaqueline was entitled to choose to a lower standard for managing her own money. As attorney, she owed Irene a much higher obligation.

[26] The order of McCarthy J. required Jaqueline to provide a full accounting of her management of Irene’s accounts and other assets from January 2005 to the present within 45 days of the date of that order, being July 29, 2018. Furthermore, she undertook to do so at her cross-examination on June 4, 2008. Even with the knowledge that these applications would be before the court, Jaqueline failed to comply with the court order. She failed to provide the documents in a timely fashion. The documents that she did provide were inadequate. I find that Jacqueline would be unlikely to comply with her on-going accounting obligation going forward if the power of attorney were to remain in place.

[27] I find that Jaqueline created healthcare concerns relating to Irene to justify her decision to move Irene to Kitchener. There was no evidentiary basis for these concerns. Jaqueline’s evidence on cross-examination was that wanted to move Irene so that Jerry and Jane would stop questioning her management of Irene’s money. I agree with Kurz, J.’s observation in *Carey v. Carey*, 2018 ONSC 4564 at para 67 (3) where he stated, “I can take judicial notice of the fact that change is difficult for persons with dementia.” A move to Kitchener would not have been appropriate for Irene.

[28] Based on the record before me, I find that Jaqueline did not perform her duties appropriately as a fiduciary. Jaqueline’s powers and duties were not exercised and performed diligently, with honesty and integrity and in good faith for the Irene’s benefit.

[29] I find that there is strong and compelling evidence of misconduct on Jaqueline’s part as attorney. Therefore, I terminate the power of attorney appointing Jaqueline as attorney dated August 25, 2005.

Should Jerry Bellefeuille be appointed guardian of Irene’s property and personal care?

Applicable Law

[30] When assessing the suitability of a person to be appointed as guardian of another, the court shall consider:

(a) whether the proposed guardian is the attorney under a continuing power of attorney for property;

(b) the incapable person’s wishes if they can be ascertained; and,

(c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person. (See Substitute Decisions Act ss. 24(5) and 57(3))

[31] The overarching and fundamental factor in appointing a guardian is what is in the best interests of the incapable person? (See *Roelandt v. Roelandt*, 2015 ONSC 6874, para 22)

Jerry’s Position

[32] Jerry states that although Irene’s current wishes with respect to management of her property and person cannot be ascertained because she is incapable, she has a clear preference regarding where she wishes to live. She told the capacity assessor that she wanted to live with Jane and stated that she was happy there.

[33] Jerry states that he has a close relationship with Irene. He also lives in Barrie and supports Jane’s care for Irene. He visits Irene and Jane regularly.

[34] Jerry states that he intends to take all necessary steps to ensure that Irene’s financial affairs are properly administered. He has brought this application solely in Irene’s best interest.

Jacqueline’s Position

[35] Jacqueline did not oppose Jerry’s appointment as guardian in the event that the power of attorney would be terminated.

Analysis

[36] Jerry has proposed a suitable guardianship plan for Irene. He supports Irene’s wish to continue to live in the apartment with Jane for as long as possible. He will continue to ensure that Irene goes to all medical appointments.

[37] Jerry has also proposed a management plan which is understandably incomplete because currently he has no knowledge of Irene’s financial affairs. He has determined that Irene’s annual expenses total $18,000. He proposes to give Jane $1,500 per month to cover Irene’s share of the apartment expenses and provide her a small amount as compensation for Irene’s care. He proposes to set aside $2,000 per year to cover the cost of personal care workers when required to allow Jane some vacation time.

Conclusion

[38] Based on the record before me, I am satisfied that the appointment of Jerry Bellefeuille as guardian of the property and person of Irene Bellefeuille is in Irene’s best interest. Accordingly, he is so appointed, contingent on his preparing an updated management plan satisfactory to the Public Guardian and Trustee within 60 days of the date of this order.

[39] On the assumption that Jerry’s management plan will be approved, he shall commence an application to pass his accounts as the guardian of Irene’s property for the period from the date of this order to the two year anniversary date of this order, within six months of the two year anniversary date of this order and subsequently, pursuant to a further court order.

[40] A fee of $250 plus HST of $32.50 shall be paid forthwith to the Public Guardian and Trustee from Irene’s estate for its review of the guardianship application.

[41] Service of the Notice of Application in this matter on Irene Bellefeuille is hereby dispensed with.

[42] Service of the Application Record on John Bellefeuille and John Tromblay is hereby dispensed with.

Costs

[43] If counsel cannot agree on costs, I will receive written submissions on a 7 day turnaround, commencing with Jerry Bellefeuille, followed by Jacqueline Bellefeuille, commencing 14 days from the date of release of these reasons. Cost submissions shall be no more than 2 pages in length (14 pt font size, regular 1 inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant at Jennifer.Beattie@ontario.ca. If no submissions are received within 21 days from the above date, the issue of costs will be deemed to have been settled between the parties.

Madam Justice M.E. Vallee

Released: November 14, 2018

[1] The manager of the building where Irene lives, another resident of the building and a friend.