Court File and Parties

Court File No.: 74/14 Date: 2019-04-05 Superior Court of Justice - Ontario

Re: Victor Steven Hutter and Marilyn Theresa Watson, Applicants And: Theresa Magdalena Hutter, Alfred Joseph Hutter, Evalina Zamana, Steve Engardt & Ann Engardt, Respondents

Before: Justice R. Raikes

Counsel: Erroll G. Treslan, Counsel for the Applicants Michael Odumodu, Counsel for the Respondents

Heard: January 31, 2019

Endorsement

[1] Theresa Hutter (hereafter “Theresa”) is the mother of Alfred Joseph Hutter (hereafter “Fred”), Victor Steven Hutter (hereafter “Victor”) and Marilyn Theresa Watson (hereafter “Marilyn”). Evalina Zamana (hereafter “Evalina”) is Fred’s spouse.

[2] In October 2010, Theresa was diagnosed by her family doctor with early onset dementia/Alzheimer’s Disease for which she was prescribed medication. At the time, Theresa resided alone in her home at 103 Windermere Crescent in Woodstock.

[3] In September 2013, Theresa moved from Woodstock to the Yukon where she resided with Fred and Evalina until November 2014. She then moved with Fred and Evalina to a home located at 2182 Motion Drive in Port Alberni, British Columbia. Theresa is the sole registered owner of that home which was purchased for $167,000. She is also the only mortgagor on the mortgage in the principal amount of $130,000.

[4] In July 2018, Theresa moved into Fir Park Village, a nursing home in Port Alberni. By November 2018, Theresa was in significant arrears of the monthly residence fees at Fir Park Village. According to an affidavit sworn by Madeline Huether, a legal assistant in the law offices of the lawyers acting for Fred, Fir Park Village was demanding payment in excess of $10,000 prior to November 30, 2018. In addition, Fred has deposed that various repairs are required to the home on Motion Drive.

[5] Victor made inquiries of the nursing home and was advised that: a. Theresa’s monthly residential fee is $2,060 which represents 80% of her after-tax pension income; b. Payments are due on the first of each month; c. As of November 1, 2018, no monthly payments had been received by the nursing home; d. Theresa was then five months in arrears.

[6] Fred deposes that he was asked by Theresa to start to manage her financial and legal affairs as of January 1, 2018. At para. 20 to his affidavit sworn December 10, 2018, Fred deposed:

20. As a result, I have exercised my continuing power of attorney for property since January 1, 2018 but not beforehand. To the best of my knowledge, Theresa had capacity at all times in 2013, 2014, 2015, 2016 and 2017.

[7] Fred is appointed power of attorney for property by Theresa. Accordingly, he is managing her monies and assets pursuant to that power of attorney. He and Evalina continue to reside in the home owned by Theresa. No evidence has been provided as to their contribution to the expenses for that home before or after Theresa’s admission to the nursing home.

[8] Fred agrees through counsel that Theresa ceased to be capable of managing her finances and property in May 2018.

Litigation History

[9] In March 2012, Theresa executed powers of attorney for property and personal care naming Victor and Marilyn as attorneys. On September 11, 2013, after a fall at home, Theresa executed new powers of attorney naming Fred as the attorney for personal care and property. Soon after, she moved with Fred to the Yukon and later, British Columbia.

[10] On December 4, 2013, Victor and Marilyn commenced an application in Owen Sound where Victor resides, seeking the following relief: a. An Order that the Office of the Public Guardian and Trustee appoint counsel for Theresa; b. An Order declaring invalid any and all powers of attorney for property and/or personal care executed by Theresa after March 19, 2012; c. An Order declaring the powers of attorney for property and personal care executed by Theresa on March 19, 2012 valid and enforceable; d. An Order removing Fred as alternate attorney on the powers of attorney for property and personal care executed by Theresa on March 19, 2012; e. In the alternative, if any powers of attorney for property and/or personal care executed by Theresa after March 19, 2012 are valid and enforceable, an order that they be terminated and the applicants be appointed guardians of Theresa’s property and personal care; f. In the further alternative, an Order declaring all powers of attorney for property and/or personal care executed by Theresa to be invalid and the applicants be appointed guardians of Theresa’s property and personal care; and g. In the further alternative, an Order declaring all powers of attorney for property and/or personal care executed by Theresa to be invalid and that the Office of the Public Guardian and Trustee be appointed as guardian of Theresa’s property and personal care.

[11] In the grounds specified for the application, Victor and Marilyn assert, inter alia, that Theresa lacked the capacity necessary to execute the September 2013 powers of attorney, and that Fred and Evalina withdrew large sums of money from Theresa’s bank accounts and transferred them to an account not in her name. There are additional allegations of impropriety by Fred and Evalina in relation to Theresa’s monies and property.

[12] Theresa’s Woodstock home was sold in late 2013, early 2014. A motion was heard by Conlan J. in Owen Sound on February 7, 2014. He ordered that: a. The closing of the sale of the property may be completed without prejudice to the issue of Theresa’s capacity or the right of Fred to act as Theresa’s attorney; b. All proceeds of sale and payments from the vendor-take-back mortgage shall remain in trust with the vendor’s lawyer except for disbursements to Cedarview Retirement Home for Theresa’s benefit, unless the parties consent or the further court order; c. The contents of Theresa’s home shall be placed in storage unless required by Theresa or Cedarview Retirement Home until their disposition is resolved by consent or further court order; d. The proceeding was transferred to Woodstock.

[13] As of October 16, 2018, Mr. Wolyniuk’s law firm holds $233,100 in trust for Theresa per the order of Conlan J..

[14] Victor and Marilyn moved for an order for financial disclosure and for a capacity assessment for Theresa. On May 23, 2014, Gorman J. ordered, inter alia, a. Fred disclose within 10 days the location or disposition of Theresa’s precious coin collection, her Quality Inn share certificates, and the amounts paid to Lerners in relation to the proceedings; b. Fred provide an accounting of all income received by Theresa since September 1, 2013; and c. The application was adjourned to July 25, 2014 for hearing.

[15] Theresa was assessed by Dr. Michael Passmore, a geriatric psychiatrist in the Yukon. Dr. Passmore produced a written report dated June 11, 2014 in which he concluded that Theresa was competent to make her own financial decisions at that time. No contrary expert report has been obtained.

[16] On July 22, 2014, Fred provided information as required by the order of Gorman J. through a letter written by his counsel, Ms. Hameed. He advised that Theresa had gifted her gold and silver coin collection to him and Evalina in October 2013. He was advised by Theresa that she paid Lerners $13,906 for the subject proceeding. She also wrote:

3. As discussed earlier, Theresa Hutter has her own bank account in the Yukon and she manages it herself. Fred Hutter is not privy to Ms. Hutter’s banking information and, therefore, he is not in a position to provide a detailed accounting of Theresa Hutter’s income since September 2013. However, Mrs. Hutter has informed Mr. Hutter that her pension income is $2,600 per month. Mrs. Hutter has also informed Mr. Hutter that the majority of her monthly income continues to be deposited to her RBC account in Woodstock which she has had no access to since September 2013. [Italics added]

[17] The application was not heard on July 25, 2014. Cross-examinations took place in October 2014. Since then, the application has been dormant.

[18] In his affidavit sworn November 22, 2018, Victor deposed that his lawyer wrote to Fred on October 16, 2014 seeking a report on the current balances of Theresa’s bank accounts and investments. Fred never responded. At para. 12 of that affidavit, Victor stated:

…Based on the June 11, 2014 report of Dr. Michael Passmore and the result of Fred’s cross-examination (which speaks for itself), Marilyn and I made the decision to refrain from requesting a hearing. We decided not to contest Fred’s assumption of power of attorney for Mom’s property but rather to put him on notice that we would eventually be seeking an accounting of his management of Mom’s finances. On May 17, 2016, our lawyer wrote solicitor Michael Odumodu (the representing Fred) an email which provided, inter alia:

“As far as the POAs are concerned, I can tell you that my clients do not intend to challenge the fact that Fred has been acting in that capacity and may well continue to act in that regard until Theresa’s demise. The reason for their position in this regard is due to the fact that Fred’s obligations are defined by legislation and an accounting will be available at the end of the day to ensure that there has been no financial abuse of Theresa.”

[Italics added]

[19] Fred brought a motion returnable November 16, 2018 seeking an order that all proceeds of sale and/or payments under the vendor-take-back mortgage, held in trust, be paid to Theresa forthwith, and that the application be dismissed for delay and want of prosecution.

[20] In response, Victor and Marilyn have brought a cross-motion seeking, inter alia: a. An Order to amend the application to include a request requiring Fred to pass accounts for the property and income of Theresa for the period September 1, 2013 to November 28, 2018 pursuant to s. 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”); b. An Order amending the application to obtain directions pursuant to s. 39(2)(a) of the SDA, and for leave to seek such directions pursuant to s. 39(3); c. An Order requiring Fred to proceed with a passing of accounts as above; d. In the event that Fred alleges that he assumed the role of guardian of property for Theresa on a date later than September 1, 2013, an order requiring Fred to proceed with a passing of accounts for the period that he admits to acting as guardian for property and to disclose copies of all bank account and investment statements for Theresa for any period between September 1, 2013 and the date he admits to have assumed the role of guardian of property; e. An Order directing Fred to pay all outstanding balances owing by Theresa to Fir Park Village forthwith; f. An Order directing Fred to pay all ongoing monthly residential fees owing by Theresa to Fir Park Village from the income of Theresa; g. An Order directing Fred and Evalina to pay all ongoing expenses related to the resident owned by Theresa at 2182 Motion Drive in Port Alberni from their own resources for as long as they continue to occupy that residence; h. An Order requiring Fred and Evalina to disclose the source of any retainer paid by them to the law firm of Montgomery Shillington and, if such funds have been derived from the assets or income of Theresa, such funds shall be paid by Montgomery Shillington into court to the credit of this proceeding, pending further order of the court; and i. An Order suspending the ability of Fred from taking any further actions with respect to the property or income of Theresa pending the passing of accounts save for those required by e and f above, the listing of the Motion Drive property for sale or any ancillary documents related to the sale of that property.

[21] The parties agreed that the cross-motion is the only matter before me at this time. The motion brought by Fred that triggered the cross-motion is to be heard another time. I am not seized of that motion. I have included the litigation history in so much detail for context.

Jurisdiction

[22] The first issue on this motion is jurisdiction. Fred takes the position that this court lacks jurisdiction because Theresa is resident in British Columbia. She has not resided in Ontario since September 2013. The issues raised by Victor and Marilyn should be brought in British Columbia under comparable legislation in that Province.

[23] Victor and Marilyn assert that the Respondents accepted the jurisdiction of this court long ago; they have attorned to it. Moreover, the existing proceeding deals with Theresa’s property in Ontario where an order has been made that funds be held in trust. Their motion arises in direct response to Fred’s motion to have those monies paid out “to Theresa”, whom Fred acknowledges is no longer capable of managing her monies; in effect, he wants the monies paid to him.

[24] Neither party provided any case law in support of their position. As a consequence, I caused some research to be done.

[25] In Castel & Walker’s Canadian Conflict of Laws, 6th ed. (Toronto: LexisNexis Canada, 2005 [including updated issues 2005-2018], the authors wrote at S. 21-1:

“Declarations of mental incapacity and appointments of those responsible for making decisions on their behalf are questions of status and are normally made by the court where the person is domiciled [Re Forrest, [1961] SJ No. 30, 30 D.L.R. (2d) 397 (QB)] or ordinarily resident [Re M. (E), [1998] AJ No. 517]. However, for practical reasons, such determinations may also be made by courts in the place where the person is present [Hubbard, Re, [2005] SJ No. 159]. The court will have jurisdiction even if the person’s property is located elsewhere [Giles v. Arnold Palmer Motors Inc., [1991] OJ No. 1595]. Once jurisdiction has been exercised, it continues even after a change in the person’s residence [Re Prygrocki, [1982] SJ No. 1010], and a court in the province of the persons ordinary residents may decline jurisdiction to avoid a multiplicity of proceedings [Pellerin v. Dingwall, [2017] BCSC 680].

A court may also take jurisdiction if the person’s property is located in the province but the person is elsewhere [Alsager v. Alsager, 2007 SKCA 134; Re W., OJ No. 1841]….

[26] In Pellerin, the daughter and son of an elderly woman suffering from dementia each attempted to exercise authority over their mother’s care and property. Between 2010 and 2014, the mother resided for periods in each of Alberta and British Columbia. In 2010, she purchased a home in British Columbia where she resided for a year. She also resided with her son in Alberta for a spell. In October 2014 she was placed in a care facility in Alberta, but was removed by her daughter in January 2015 and moved back to her home in British Columbia. Eventually, she was again placed in a care home in Alberta.

[27] The son sought an order from the Alberta Court of Queen’s Bench appointing him as guardian and trustee over his mother’s property which was opposed by his sister who filed an application in British Columbia to move the proceedings to British Columbia. The application judge declined to do so. The decision was reversed in part on appeal (2018 BCCA 110) but the issue of jurisdiction was not reversed.

[28] At paragraph 15, the Court of Appeal noted:

The first issue is whether the court had jurisdiction to hear the petition. The judge found that territorial competence was established both because Ms. Dingwall was currently ordinarily resident in British Columbia, and because the matter had a real and substantial connection to British Columbia. While Ms. Pellerin may have attorned to the Alberta proceedings, this was not determinative of jurisdiction. Rather, this was a case where both British Columbia and Alberta had jurisdiction. [Italics added]

[29] The subject application was commenced in December 2013 shortly after Theresa’s move to the Yukon. The power of attorney for property was executed in Ontario in September 2013 when Theresa was still ordinarily resident in this province. Theresa’s house and other assets including contents were situate in Ontario when the application was commenced.

[30] Neither Theresa, who was previously represented by counsel, nor Fred and Evalina objected to the jurisdiction of this court until this cross-motion was brought. While attornment to the jurisdiction is not determinative, it is a factor to be weighed.

[31] As in Pellerin, both British Columbia and Ontario have jurisdiction. No proceedings have been commenced in British Columbia. In my view, this Court has jurisdiction to hear the cross-motion and application as: a. The events giving rise to the dispute – the execution of the powers of attorney – occurred in Ontario; b. This proceeding was commenced and defended in Ontario; c. This Court’s order that funds be held in trust pending further order of this Court continues to bind the parties; d. The property in question is situate in Ontario albeit readily transferable; e. Whatever Theresa’s capacity to manage her finances in 2013 – 2017, she is no longer capable of doing so; f. The focus of the Ontario proceedings is on Theresa’s monies and assets, some of which remain in Ontario; and g. The applicants are resident in Ontario.

[32] I note that Victor and Marilyn have accepted that Fred will make decisions regarding Theresa’s care. They have reluctantly accepted that Fred will make decisions regarding their mother’s finances subject to proper management and accounting of those activities. Whether that accounting and disclosure, if ordered, takes place in Ontario or British Columbia is a matter of inconvenience to one side or the other. Given that this action has been commenced, defended, orders made and assets remain in Ontario, jurisdiction rests in Ontario.

Amendment

[33] The current application does not contain any claim for an accounting or disclosure in the event the power of attorney for property appointing Fred is found to be valid. Victor and Marilyn seek to amend the Notice of Application to add such relief.

[34] Fred opposes the amendments on the following grounds: a. They are prejudicial because they presume wrongdoing and “impose a remedy and sanction prior to any actual trial or determination”; b. The amendments come after cross-examinations are complete and the matter is ready for a hearing based on the current evidentiary record; c. The central issue will be when Theresa lost capacity and Fred will be put in the position of being asked to account for transactions he did not do; and d. Victor and Marilyn have offered no evidence of Theresa’s capacity for any transaction in issue. This is a new claim which should not be joined to the current proceeding.

[35] Rule 14.09 of the Rules of Civil Procedure provides that an originating process that is not a pleading may be amended in the same manner as a pleading. Rule 26 governs amendments of pleadings. Rule 26.01 requires the court to grant leave to amend on such terms as are just unless prejudice would result that cannot be compensated for by costs or an adjournment.

[36] I do not agree that the proposed amendments impose a remedy; rather, they comprise additional relief sought, entitlement to which will be determined on evidence. The mere granting of leave to amend does not equate to entitlement to that relief.

[37] The relief requested by the amendments do not materially change the character of the dispute nor do they place Fred in an untenable position. The amendments assume that Fred is found to be an appropriate attorney and the power of attorney is upheld. In that event, Fred is being asked to account for transactions taken by him in the exercise of his position as attorney.

[38] With respect to the amendments coming after cross-examinations, that can be addressed through costs if appropriate to do so.

[39] There is one further consideration in determining whether to allow the proposed amendment; namely, whether leave should be given to Victor and Marilyn to seek a passing of accounts.

[40] The substantive relief sought by Victor and Marilyn on this cross-motion is set out in para. 20 above. In essence, they seek a passing of accounts by Victor from September 2013 or a later date determined by me, and directions to Victor as to what expenses he should pay for Theresa and what he should pay personally.

[41] Section 42(3) of the SDA provides that the guardian of property, the incapable person or any of the other persons listed in subsection (4) may apply to pass the accounts of the guardian of property. Item 6 of subsection (4) permits “any other person, with leave of the court” to apply to pass the accounts. Victor and Marilyn are captured by that category of applicant. Leave of the court is required to apply.

[42] The test for leave to apply is twofold: a. The proposed applicants must have a genuine interest in Theresa’s welfare; and b. It is reasonable to believe that a court hearing the matter may order Fred to pass accounts: Ali v. Fruci, 2006 CarswellOnt 1706 (S.C.J.) at para. 9.

[43] Victor and Marilyn are Theresa’ children. They are beneficiaries of her Estate when she dies. They have a genuine interest in Theresa’s welfare and in ensuring that her assets are not inappropriately depleted by Victor.

[44] Theresa is now incapable of managing her financial affairs and has been since at least May 2018. By his own evidence, Victor has been handling Theresa’s finances since at least January 1, 2018. Theresa’s incapacity makes her vulnerable.

[45] Victor and Marilyn have provided evidence that raises questions that Theresa’s monies may have been used for his benefit, not Theresa’s. It is undisputed that Theresa’s residential fees at Fir Park Village were unpaid for a number of months notwithstanding clear evidence that Theresa’s monthly pension income exceeded that expense. Other evidence is provided that suggest that Theresa’s assets have been substantially diminished. I am satisfied that it is reasonable to believe that a Court may order a passing of accounts.

[46] Accordingly, leave is granted to Victor and Marilyn pursuant to s. 42(3) and (4) 6 of the SDA to bring an application for a passing of accounts.

[47] In summary, the amendments do not give rise to any prejudice that cannot be compensated for by costs or an adjournment. The test for leave to bring an application for a passing of accounts is met. Accordingly, leave to amend the Notice of Application is granted.

Disclosure of Transactions/Passing of Accounts

[48] I turn now to whether it is appropriate to make such an order at this point on the evidence on this cross-motion.

[49] In Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, Price J. addressed whether the attorney in that case ought to be compelled to pass accounts in respect of her mother. At paras. 116-18, he succinctly summarized the applicable principles and test:

[116] The Substitute Decisions Act seems to recognize in s. 38(1) that there are different duties to account depending on the capacity of the donor. The obligations imposed by section 32, e.g., to keep accounts, apply “if the grantor is incapable of managing property [or] if the attorney has reasonable grounds to believe that the grantor is incapable of managing property” [Fair v. Campbell Estate, [2002] O.J. No. 5926 (S.C.J.) at para. 28].

[117] If the grantor of a power of attorney is sui juris, she makes the decisions. She is not obliged to involve the attorney in all or any of them. She is not obliged to ask the attorney to help her implement all or any of her decisions. In these circumstances, imposing a duty to account could cast an impossible burden on the attorney. The attorney could be required to account for decisions over which she had no influence and for transactions that she did not implement in whole or in part [Bishop v. Bishop at para. 47, citing Fair v. Campbell Estate, supra, at para. 29].

ii. Onus of Proof

[118] In order to justify an order requiring a passing of accounts, there must be clear and compelling evidence of mismanagement, theft or financial abuse [Bishop v. Bishop, para. 46]. As the respondent siblings have alleged fraud and forgery, the onus of proof rests on them to establish, on a balance of probability, Ms. Nguyen-Crawford’s wrongdoing. It requires them to present not simply evidence of suspicious circumstances suggesting undue influence, but clear and cogent evidence of wrongdoing reflective of the seriousness of the allegations being made [see footnote 32 for cases].

[50] The courts have distinguished between an attorney who assists with the execution of decisions of the grantor and an attorney who makes the decisions and carries them out. In the former case, it is unreasonable and casts an impossible burden on the attorney to require that he or she account for these transactions: Ekelshot-Kumelj et al v. Bradley, 2011 ONSC 83 at para. 18; Bishop, para. 47.

[51] In this case, Victor and Marilyn ask this Court to impose a duty on Fred to pass accounts going back to September 2013. They offer no cogent or compelling evidence that Theresa was incapable of managing her finances as at September 2013 or subsequently. They offer no cogent or compelling evidence that Fred was making decisions and carrying out those decisions at any time before January 1, 2018. The evidence indicates that Theresa was assessed by a geriatric psychiatrist who prepared a report in 2014 indicating that she was capable and Victor and Marilyn have tendered no evidence that shows otherwise.

[52] The affidavit filed by Victor on the cross-motion indicates that he estimates that Theresa should have well over $250,000 available to pay her expenses at Fir Park Village without taking into account the monies held in trust from the sale of her Woodstock home. That estimate is based on a number of assumptions that strike me as speculative.

[53] The only cogent evidence provided that hints at mismanagement by Fred is non-payment of Theresa’s residence fees at the nursing home. Theresa resided there for five months with no payments made. In the meantime, Fred and Evalina continued to reside in the home owned by Theresa. There is no evidence as to what happened to the pension monies received by or for Theresa during the time she was in the nursing home although a reasonable inference would be that those monies were used to defray ongoing costs for the home in Port Alberni including the mortgage payments, taxes and utilities. It is troubling that Fred seeks the urgent release of the funds from the sale of the Woodstock home for, inter alia, repairs to the home that Theresa was no longer living in but he was. There is no suggestion in the evidence filed by Fred on the cross-motion that the plan was to sell Theresa’s house now that she was in a nursing home and the repairs were needed to improve the sale price, or that he intended to rent her home to himself or someone else.

[54] Nevertheless, the evidence does not satisfy me that there is a sufficient basis to order Fred to pass accounts at this point. I am satisfied, however, that the evidence raises sufficient questions that some disclosure of financial information should be provided. Accordingly, Fred shall immediately provide through his counsel the following documentation: a. bank statements and investment statements for all accounts in Theresa’s name alone or jointly with Fred; b. invoices and receipts for Fir Park Village from the time Theresa started to reside there to the date she ceased to reside there or to date, whichever is earlier; c. copies of cheques, credit card statements and/or receipts for payments made on Theresa’s behalf. The above documentation shall be provided within 60 days and shall be limited to the time period from January 1, 2018 to date. It may be that the disclosure provided will assuage Victor and Marilyn’s concerns or provide the clear and cogent evidence needed.

Directions to Pay Requested

[55] The cross-motion seeks an order that Fred be directed to make certain payments and that he do so from Theresa’s income, that he and Evalina pay the expenses of the home on Motion Drive personally, and that they disclose the source and amount paid to Fred’s lawyer if those monies were paid from Theresa’s account.

[56] In Keller v. Wilson, 2015 ONSC 6962, the attorneys applied to the court for advice and direction. At para. 24, Justice Broad held that section 39 of the SDA did not override or neutralize the principle in Re Fulford, (1913), 29 O.L.R 375 (H.C.) which held that a court is not authorized to give directions to trustees on whether or how to exercise their discretion (see paras. 18-21 in Keller).

[57] I am not satisfied that I have sufficient information to direct the attorney, Fred, to pay Theresa’s nursing home expenses or house payments from any particular source. I was advised by counsel during oral submissions that Theresa no longer resides at Fir Park Village and has returned to live at the Motion Drive home. I was further advised that Theresa’s account at the nursing home has been paid in full. There is some evidence that a payment was made toward that account.

[58] Fred is no doubt aware that he has an obligation to keep proper records and accounts and that he may be called upon to pass accounts in court. He is in a fiduciary relationship in his capacity as attorney. He owes duties of utmost loyalty, accountability and good faith. He risks much if he falls short in his execution of those obligations.

[59] I decline to make the orders for directions requested. From the information provided, events have overtaken the situation as it existed when the cross-motion was brought. It is appropriate, however, that Fred notify his siblings of where Theresa is residing and if that changes, provide the details to them. Regardless of the unfortunate relationship between siblings, Victor and Marilyn are Theresa’s children and are entitled to be informed promptly if and when Theresa’s living arrangements change.

[60] With respect to the request that Fred disclose whether Theresa’s funds were used to pay the account of counsel acting on this cross-motion for Fred, the order for disclosure includes all expenditures made on Theresa’s behalf after January 1, 2018. It should capture any such payment if made from Theresa’s funds. No submissions were made on this point. If it turns out that the retainer was paid from Theresa’s funds, this decision shall be without prejudice to Victor and Marilyn bringing a further motion arising from such disclosure.

Costs

[61] If the parties cannot agree on costs, they may make written submissions not exceeding three pages within 15 days of release of this decision.

Justice R. Raikes Date: April 5, 2019