Court File and Parties

OSHAWA COURT FILE NO.: CV-18-3482 DATE: 20190503 SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE MATTER OF POWERS OF ATTORNEY FOR PERSONAL CARE, POWERS OF ATTORNEY FOR PROPERTY OF ISABEL DANIEL AND WAYNE DANIEL, and the Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 22

RE: Linda Austin and Ted Austin, Applicants

BEFORE: Di Luca J.

COUNSEL: David A. Seed, Counsel, for the Applicants

HEARD: April 26, 2019

Endorsement

[1] This is an application to pass accounts and seek compensation under Powers of Attorney for Property and Personal Care. Unlike many applications to pass accounts, this is a “good news” story.

[2] The Applicants, Linda and Ted Austin, provided years of personal assistance to an elderly couple, Isabel and Wayne Daniel, their friends and former neighbours. The degree of assistance and care went far beyond what anyone would reasonably expect from a friend and neighbour. In many ways, Linda and Ted acted like loyal and dutiful family members.

[3] Throughout their years’ of service, Linda and Ted never asked for or took a penny.

[4] Wayne Daniel passed away in 2017. Isabel Daniel is now living in an assisted care facility. While her physical health has declined, she remains mentally sharp. At her suggestion, Linda and Ted have brought this application to be compensated for their services.

[5] Isabel Daniel has provided an affidavit through her long-time counsel Tyler Higgins. In her affidavit, Isabel indicates that she is content with the proposed compensation to Linda and Ted. In her view, the compensation is reasonable “having regard to their ongoing commitment, time and devotion expended to ensure that the needs and wishes of my late husband and myself were attended to in the most compassionate and attentive manner.”

[6] The Public Guardian and Trustee was advised of the application but declined to participate in view of the fact that Isabel was represented by counsel.

[7] Having reviewed the record before me, I am satisfied that the requested compensation is reasonable and appropriate in the circumstances of this case. I am also satisfied that the requested legal fees are appropriate in view of the complexity of this application and the detailed and meticulous nature of the materials prepared.

Brief Background

[8] For well over 20 years, Linda and Ted provided assistance to Isabel and Wayne. While the assistance initially involved simple neighbourly tasks, in later years Linda and Ted became constructive full-time care attendants.

[9] Isabel and Wayne were an elderly couple with no next of kin and no one else to look after them. They were high net worth individuals. Wayne had a penchant for wise investing and amassed a significant portfolio. Isabel and Wayne were also engaged in philanthropy and dedicated a significant amount of money to a foundation named in honour of their deceased daughter.

[10] In their later years, their health declined. They both suffered strokes and were physically disabled. They were effectively confined to their home, though with the assistance of Linda and Ted they were able to continue living independently and together.

[11] Linda and Ted would regularly attend at the Daniels’ home and would perform all manners of chores and tasks, from banking, preparing tax returns, minor household repairs, grocery shopping and the like. They also drove them to a large variety of medical and other appointments, and assisted with purchasing medical equipment required to support independent living. Lastly, Linda and Ted would spend social time with the Daniel’s providing comfort and company.

[12] In 2011, Linda and Ted became Powers of Attorney for Property and Personal Care for both Isabel and Wayne. In this role, Linda and Ted managed Isabel and Wayne’s financial affairs, tended to their personal needs and provided emotional support. The Powers of Attorney were prepared by Mr. Higgins, the Daniel’s solicitor.

[13] In December of 2011, Ted and Wayne attended at RBC Dominion Securities and met with Wayne’s financial planner. The purpose of the meeting was to introduce Ted as Wayne’s Power of Attorney who would be assisting with Wayne’s financial affairs going forward. Thereafter, Ted handled most if not all of the Daniel’s banking.

[14] Eventually, as health issues intervened, the Daniels decided to move into assisted living at the Whitecliffe Terrace. Even once there, the Daniels continued to receive additional services from Linda and Ted. The Daniels sold their home and Linda and Ted were instrumental not only in making arrangements for the sale, but they also assisted in the physical move and downsizing of the contents of the home. The sale of the home resulted in some litigation and Ted assisted in resolving the litigation on the Daniel’s behalf.

[15] When Wayne’s health further deteriorated, Linda and Ted helped move him to a home that provided more intensive care. They also assisted Isabel with the separation from her husband.

[16] In 2017, Wayne died. Linda and Ted assisted with funeral arrangements and addressed issues relating to various insurance policies held by Wayne. While Isabel was the named Executor, she was not able to act in that capacity. Linda and Ted met with representatives from RBC Trust and were advised that as Powers of Attorney for Isabel, they should act as Executors under the will. Wayne’s will included a compensation scheme for services of an executor. The same scheme forms part of Isabel’s will. Upon the death of Isabel and Wayne, the residue of their estate is to be paid to the RBC Charitable Gift Programme. The wills were prepared by Mr. Higgins in concert with financial advisers from RBC.

[17] In terms of finances, Linda and Ted assisted the couple with all of their day to day affairs. They acted conscientiously and scrupulously in this regard. This is confirmed by a detailed financial analysis prepared by a Chartered Professional Account and included in the application record. This analysis was commissioned by counsel for the Applicants in order to leave no stone unturned in demonstrating the care taken with the couple’s finances.

[18] The accounting analysis is very helpful. It includes a source document review for a seven year period and includes a review of the Daniel’s complicated investment portfolio. Every material expense is reviewed, a reconciliation of investments accounts is undertaken and amounts are cross-referenced to the couple’s tax returns. The Austin’s were required to provide explanations for any transaction over $1,000, all cash transactions and any recurring expenses.

[19] The accounting analysis reveals no issues in terms of Linda and Ted’s handling of the couple’s funds. Not only were the funds well handled, over the period of the Austin’s stewardship the investment portfolio grew in value from $6.06 million to over $7.36 million.

The Compensation Sought

[20] In this application, Linda and Ted seek to be compensated on following three distinct bases which I will address in order:

Compensation for Administering the Estate of Wayne Daniel

[21] The Last Will and Testament of Wayne Daniel has appended to it an Estate and Testamentary Trust Compensation Agreement that was created by RBC Trust. The value of the estate that was transferred under the Will to Isabel was approximately $3.9 million in investments and approximately $131,000 in insurance proceeds. Using the formula found in the Compensation Agreement, the executor compensation is $129,775.00.

[22] The formula used to arrive at this figure is found in Wayne Daniel’s will. Linda and Ted performed the role of executors and administered Wayne’s estate accordingly. There is no apparent reason why they should not receive this compensation.

Compensation as Powers of Attorney for Property

[23] The formula for compensation under a Power of Attorney for property is fixed by statute and regulation: see Ontario Regulation 26/95 made under the Substitute Decisions Act. Using this formula applied to the years 2012 to 2018, Linda and Ted claim $435,772.36 in compensation. This figure is based upon calculations undertaken by the accounting firm that reviewed all of the Daniel’s financial records.

[24] The Applicants note that in estate matters, guideline percentages are used but the amounts determined under the guidelines are then assessed for reasonableness against an enumerated list of factors; see Laing Estate v. Hines and Flaska Estate (Re). The factors assessed include; the size of the trust, the care and responsibility involved, the time occupied in performing the duties, the skill and ability shown, and the success resulting from the administration.

[25] I see no issue with Linda and Ted receiving the contemplated statutory compensation as set out in the regulations to the Substitute Decisions Act. While not necessary to do so, I also find that the factors set out in the estates case law support the reasonableness of the compensation sought. There is no issue that Linda and Ted provided great assistance in managing the financial affairs of Wayne and Isabel. The accounting analysis provided reveals that the financial affairs were handled meticulously and honestly. The large financial portfolio grew in value and was well managed. It would have taken considerable time and effort to manage the portfolio, even if Linda and Ted were not engaged in the actual investment decisions.

Compensation for Personal Care

[26] There is no statutory framework for the compensation of services provided under of Power of Attorney for Personal Care. That said, the case law supports the general proposition that a court can fix and award such compensation when presented with an adequate record; see Re Brown at para. 3, Childs v. Childs, 2015 ONSC 4036 at paras. 30-32 and Cheney v. Byrne (Litigation Guardian of). In fixing and awarding compensation, the court is guided by the overarching principles of reasonableness and proportionality.

[27] In support of their claim for compensation for personal care services provided, both Linda and Ted have provided affidavit material detailing the various services they provided between 2012 and 2018. While neither Linda nor Ted kept a detailed docket of time spent, they were able to provide an estimate of the types and frequency of the services they provided. I have no doubt that they dedicated countless hours over the years. These hours were meaningful as they permitted both Isabel and Wayne to live independently as long as possible.

[28] As part of the application, the applicants retained the services of Suzanne Amodeo who is a licensed paralegal, Certified Case Manager and Certified Canadian Life Care Planner. Ms. Amodeo is employed in the personal injury field and is engaged in preparing reports relating to cost of care issues. Ms. Amodeo interviewed Linda and Ted to determine the range and frequency of services provided, and then calculated an estimated cost for these services. As set out in her report, she estimates that the rough value of services provided by Linda and Ted between 2011 and 2017 is approximately $135,462.15.

[29] When I assess the range of services provided over the number of years indicated, in the context of the Daniel’s financial means and the impact that those services had in terms of the Daniel’s independence and dignity, I have no hesitation concluding that the amount sought is reasonable and proportionate in the circumstances.

Conclusion

[30] The application is allowed and judgment is granted in the form provided by counsel. The total compensation ordered is $757,659.87 including HST.

[31] I also approve the fees for counsel in accordance with the bill of costs and note that both counsel have filed Requests for Increased Costs.

[32] The fees for Mr. Seed are $125,021.15 inclusive of HST and disbursements. While this amount seems at first blush high, I note the accounting report alone was worth $45,000. In view of the detailed, thorough and helpful material filed and in view of the hours it took to assemble, digest and present the financial information provided, I find that the fees and disbursements claimed are reasonable.

[33] I also approve fees of $7,500 including HST for Mr. Higgins.

[34] A copy of the Judgment shall be served on RBC Trust.

Justice J. Di Luca

Date: May 3, 2019