COURT FILE NO.: CV-19-1920

DATE: 2020 10 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DINATE (DEAN) BOTELHO

Shayna Beeksma, for the Applicant (Respondent in Court File No. CV-19-3266)

Applicant

• and -

ODALEIA (DARLENE) FAULKNER, BERTA D’AMARAL DA SILVA BOTELHO, THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE

Respondents

Jasmine Sweatman, for the Respondent Berta D’Amaral Da Silva Botelho (Applicants in Court file No. CV-19-3266)

Kevin Scullion, for the Respondent Odaleia (Darlene) Faulker (Applicants in Court file No. CV-19-3266)

HEARD in writing

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] There are three distinct motions before me to decide as case management judge in this matter, each requesting a number of different orders. On consent, the parties have agreed that I may consider these motions without oral submissions. The Public Guardian and Trustee (“PGT”) filed no materials in these motions and has taken no position.

I. Relief Sought

[2] Rather than rendering a decision for each motion separately, I will consider all the requested relief at one time. I do this keeping in mind the principles set forth in r. 1.04(1) and (1.1) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) that require that the Rules be considered in away to secure the most expeditious, just, and least expensive determination of these proceedings, and that any orders made should be proportionate to the importance and complexity of the issues, and the amounts involved.

[3] The Applicant Dinate (Dean) Botelho (“Dean”) seeks the following relief:

a) An order that the Respondent Berta D’Amaral Da Silva Botelho (“Berta”) be assessed by a qualified capacity assessor pursuant to s. 79 of the Substitute Decisions Act, 1992, S.O. 1992, c.30 (“SDA”), to determine her capacity to manage her property, her capability for personal care, and her capacity to make a will;

b) The production of any medical records in the possession of any institution nor medical party who has treated Berta since January 1, 2013 until the date of the order and, in particular, the records of Dr. Sandra Guirguis (Berta’s family doctor), Dr. Margaret Grant (a geriatrician who treated Berta after a stroke at Credit Valley Hospital), Dr. Grant Moore (Berta’s previous family doctor from 2013 to August 2017), the Victoria Order of Nurses (who cared for Berta and to whom Berta made an allegation of assault against Dean), Community Care Access Centre (Mississauga Halton LHIN), Trillium Health Partners – Mississauga Hospital (a hospital where Berta was treated), and Josie DiPlacito (social worker who performed a capacity assessment);

c) Production of any solicitor’s files relating to any powers of attorney signed by Berta, appointing the Respondent Odaleia (Darlene) Faulker (“Darlene”) as attorney, and, in particular, the file of Carlos Pereira;

d) An order pursuant to r. 25.11 that the first affidavit sworn by Marie Borges on July 18, 2019 be struck;

e) An order pursuant to r. 25.11 that the second affidavit sworn by Marie Borges on July 18, 2019 be struck;

f) An order that the report of Dr. Richard Schulman dated August 15, 2019, the letters of Dr. Nicole Matthews dated June 6, 2019 and August 6, 2019, and the letter of Mr. K. Jaworski dated August 14, 2019 be excluded from evidence or not considered evidence;

g) A preservation order – namely that a freeze remain on bank accounts in the name of Berta, or that Berta be paid a set monthly allowance of $1,500 plus an additional flat fee of $5,000 to cover her expenses;

h) That Berta’s home, located at 87 Bonham Boulevard, Mississauga, Ontario (“the Property”) not be sold or encumbered; and

i) That a mediation take place (this relief will not be ordered since the parties entered into mediation in the summer of 2020).

[4] Darlene and Berta, while represented jointly, seek the following relief:

a) An order directing the Royal Bank of Canada to vacate the hold and/or freeze on Berta’s account, which is identified as account 04942 520-***-0 (“RBC Account”);

b) An order directing the Bank of Nova Scotia to vacate the hold and/or freeze on Berta’s account, which is identified as account “powerchequing **893229 (“BNS Account”);

c) An order that Dean be removed as a joint owner of the BNS Account;

d) An Order that Darlene be reimbursed expenditures she personally paid on behalf of Berta, from August 2018 to March 2020;

e) In the event that the RBC Account and BNS Account are not released, an order that Darlene receive a monthly allowance of $5,000 per month for the benefit of Berta, or in an amount deemed appropriate by this court; and

f) A declaration that Dean has no standing to seek a preservation order or participate in the motion with respect to expenses.

[5] Following the service and filing of these materials, Darlene retained counsel separate from Berta. Nonetheless, both Berta and Darlene still wish their motions to be considered.

II. Background

[6] Berta is currently 89 years old. Darlene and Dean are two of her three children. Her other child, a daughter, Cidalia, is not a party to these proceedings. Everyone agrees that Cidalia and Berta have been estranged for many years, although Cidalia did join Dean in a similar, earlier application commenced in late December 2018, which appears to have been abandoned. Berta’s husband passed away in or around 2002, and she has never remarried.

[7] Berta speaks only a specific dialect of Portuguese. She is illiterate in any other language. She has always been dependant on her husband or her children when these obstacles impacted her ability to take care of herself or her family. To be clear, prior to the events described in these proceedings, it has not been suggested that Berta lacked the capacity to take care of herself or her family. Rather, her ability to do so was at times hampered by her inability to communicate with anyone outside of her family or community.

[8] From around the time of his father’s death, Dean has lived with Berta. He claims to have assisted her with her personal care and financial management and looked after the Property in which they both lived. Darlene denies that Dean lived constantly with Berta and was of any great assistance to Berta. Darlene also states that for periods of time she was involved with assisting Berta, but then would not assist for a period of time, due to family dynamics. In the summer of 2018, Berta was removed from the Property and started living with Darlene. An allegation of assault was made against Dean with respect to Berta. Those charges were subsequently withdrawn or otherwise disposed of in a way that attached no criminal guilt to Dean. Dean and Darlene dispute whether Berta decided to change residences of her own free will. Berta remains with Darlene to this day.

[9] An Application was started by Dean on May 28, 2019 and is identified as Court File No. CV-19-1920-00 (“1920”). It was later amended on August 6, 2019. Darlene and Berta commenced their own application, identified as Court File No. CV-19-3266 (“3266”). Both applications were consolidated by the Order of Ricchetti R.S.J., dated August 22, 2019. I was appointed case management judge on November 21, 2019. By that time, these motions had already been brought. One of my first actions as case management judge was to put in place a schedule for the argument of these motions and the scheduling of a final hearing date. Unfortunately, the suspension of court operations due to the pandemic and other scheduling issues caused the schedule to fall apart. In the hope of getting this matter back on track, the parties agreed that these motions be considered in writing, as indicated above.

[10] Given the protracted nature in which the materials were filed as well as some administrative challenges since the suspension of court operations, counsel were asked to provide the court with a written summary of the materials on which they intent to rely. All the listed materials were reviewed.

III. Analysis

A. Capacity Assessment

[11] Section 79 of the SDA states:

79 (1) If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity. 1992, c. 30, s. 79 (1).

[12] In addition, s.105 of the Courts of Justice Act, R.S.0., 1990 c.C.43 (“CJA”) states:

(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

[13] In the decision of Abrams v. Abrams, 2008 CarswellOnt 7788, [2008] O.J. No. 5207 (S.C.), the court was asked to order a capacity assessment of two elderly parents who were at the centre of a dispute between their adult children. Strathy J. stated at para. 50:

In considering whether to order an assessment, whether on motion or on its own initiative, a court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable. The appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial intervention into the privacy and security of the individual. As Mr. Justice Pattillo said in Flynn et al. v. Flynn (December 18, 2007, unreported, Ont. S.C.J., Court file no. 03-66/07): “[a] capacity assessment is an intrusive and demeaning process.”

[14] In deciding whether to order an assessment, particularly as there was already existing assessments, Strathy J. stated at para. 35 that he should consider and balance the following factors to determine whether, in all the circumstances, the public interest and the interests of the person asked to be assessed, require that an assessment take place and justify the intrusion into their privacy:

(a) the purpose of the SDA, being to protect the vulnerable;

(b) the terms of s. 79 of the SDA, namely:

(i) the person’s capacity must be in issue; and

(ii) there are reasonable grounds to believe that the person is incapable;

(c) the nature and circumstances of the proceedings in which the issue is raised;

(d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;

(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;

(f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;

(g) whether the assessment will be necessary in order to decide the issue before the court;

(h) whether any harm will be done if an assessment does not take place;

(i) whether there is any urgency to the assessment; and

(j) the wishes of the person sought to be examined, taking into account his or her capacity.

[15] One year later, in Kischer v. Kischer, 2009 CarswellOnt 81, Strathy J. was again asked to order a capacity assessment. In Kischer, he followed up on his reasoning in Abrams, and stated at para. 10:

The assessment process is an important tool for the court in the discharge of its responsibility to protect the vulnerable. It enables the court to obtain an objective, independent and expert assessment of the individual’s capacity, free from the partisan and subjective perceptions of the parties. Its utility cannot be understated. That having been said, it is important to resist the temptation to order an assessment based on the argument “it can’t hurt.” It can hurt. Privacy and freedom from coercive interference with one’s physical and mental autonomy are core values of Canadian society. In light of these values, and the presumption of capacity in the SDA, an assessment should only be ordered where a case has been made out, on reasonable grounds, and the court is satisfied that this intrusive measure is necessary to ensure that a potentially vulnerable person is protected.

[16] In this case, evidence has already been presented with respect to Berta’s mental capacity. A Rowland Universal Dementia Assessment Scale test on July 23, 2018, was performed by Josie DiPlacito, a social worker, in which Berta scored 28/30. Berta’s family doctor from 2009 to 2015 and from February 2019 to present, Dr. Nicole Matthews, provided a letter dated June 6, 2019 and a further letter dated August 6, 2019. She opines that she does not believe that the medication Berta took has started to cause her a significant amount of cognitive decline.

[17] Finally, Dr. Richard W. Shulman has provided a medical report dated August 15, 2019, in which he performed a full capacity assessment. He found Berta capable to instruct counsel, capable to manage her property with assistance, capable of granting a continuing power of attorney for property and for personal care, and capable of making decisions about where she should live. He updated his assessment as of March 2020. While he concedes it is difficult or Berta to make independent decisions and act upon them with respect to her personal care and to manage her personal finances due to her language and physical limitations, he does conclude that she understands what she is asking of her helpers and participates in these decisions.

[18] I have considered the applicable statutes and the factors set out in Abrams and Kischer, and I find that a further capacity assessment of Berta should not be ordered. Even if Dean has satisfied the particulars of s. 79 of the SDA, of which I am making no such determination, the following other factors are compelling:

a) It is now over two years after the competing powers of attorney were signed, and a capacity assessment in late 2020 will have little probative value in determining Berta’s capacity at the time she signed the powers of attorney.

b) Dean has alleged that Berta had capacity when she signed the powers of attorneys in his favour only 22 days prior to signing the powers of attorney in Darlene’s favour. He also argues that Berta was subjected to undue influence and that the powers of attorneys were signed in suspicious circumstances. A capacity assessment will not assist him with these latter arguments.

c) Berta has already been assessed formally by Dr. Shulman, whose credentials have not been challenged. Other care providers have also provided informal assessments of Berta’s capacity, some when Dean was involved in Berta’s care.

d) Currently, there is no urgency, and Berta is not at risk. Berta is being cared for by her daughter, and her bank accounts have been frozen. Darlene has been able to access some funds on Berta’s behalf upon presenting an invoice to the bank, and neither party will have access to Berta’s savings without this court’s approval.

e) Berta is 89 years old. She is wheelchair--bound. She is illiterate and only conversant in a dialect of Portuguese. Her health is not good, and the litigation is stressful. There is no reason to subject this lady to an assessment that will have little impact on a dispute between her children as to who was given authority in 2018 to look after her and her assets in the event that she should be unable to manage these things herself.

B. Medical Record and Estate Record Production

[19] Rule 75.06 governs all contentious estate proceedings and sets out what orders may be made by the courts when a party seeks an order for directions. Both parties rely on the case of Seepa v. Seepa, 2017 ONSC 5368, wherein Myers J. suggests that the principles set out in the seminal case of Neuberger Estate v. York, 2016 ONCA 191 be applied to the usual estate motions where the parties seek lengthy, intrusive, and expensive documentary collection and investigation: at paras. 2, 22-23.

[20] The case of Neuberger Estate was heard in the context of a will challenge. Gillese J.A. stated that a moving party, when seeking an order for directions under r. 75.06, must adduce or point to some evidence that, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant is unable to do so, or the propounder of the testamentary instrument successfully answers the challenge, then the motion should be dismissed. If on the other hand, the moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instruction be proved: para. 89.

[21] In Seepa, Myers J. does acknowledge at para. 26-27 that questions naturally arise from the application of the “minimum evidentiary threshold” as stated in Neuberger Estate. Nonetheless, Myers J. states at para. 35:

…At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits. Normally, a litigant must just plead facts that support a cause of action to become entitled to use the full panoply of fact-finding tools provided by the Rules. In estates cases, more is required. Some evidentiary basis to proceed is required in order to address the specific policy concerns that are discussed above.

[22] Myers J. acknowledges the discretionary nature of relief sought under r. 75.06, but states at para. 39 that when trying to determine if the minimum evidentiary threshold has been met:

… the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it. The court will be guided in making directions, as always, by the primary dictate to fashion a process that provides a fair and just resolution of the civil dispute. A fair and just resolution process is one that is developed to meet the goals of efficiency, affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in Hryniak.

[23] Myers J. concludes that r. 75.06 serves the interests of parties well when directions are made that are tailored to each specific case. He states at para. 49:

… court[s] should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties. But processes that show some thought to customize a process to the evidence so as to promote efficiency, affordability, and especially, proportionality, with use of a scalpel rather than a mallet, … and similar efforts to minimize the expense, delay, distress, and the overwhelming disruption caused by the process itself, are to be greatly encouraged.

[24] In Martin v. Martin, 2018 ONSC 1840, parties were in a dispute regarding who should be granted a certificate of appointment. One of the parties sought the production of medical and testamentary documents. In this decision Pattillo J. reviewed Neuberger Estate and Seepa and interpreted the minimal evidentiary threshold to be a low threshold to meet, and ordered the requested documents be produced: paras. 35, 37, 39.

[25] In this case, I find that Dean has met the minimum evidentiary threshold for the documentary disclosure required, but not to the extent requested in his Amended Notice of Application. It is evident that Dean does not believe the full extent of his request is required, given that in his supporting affidavit, he narrows the particular time period for which he needs production depending on the party who is the subject of his request.

[26] I find the affidavit material put forth by Dean raises some issues about Berta’s true wishes and intentions in August 2018. She changed her power of attorneys within a three week period. She made allegations of abuse, and then retracted them. Berta’s care workers were uncertain about what she wanted. Both parties acknowledge that their mother can be difficult.

[27] While Darlene maintains that Berta’s capacity is not at issue in 2018, or that Berta was not unduly influenced, her answer to these allegations is not particularly helpful. The affidavits put forth, sworn by Maria Borges, are hearsay at best. This forces the court to contemplate: if Berta was fully able to understand what she was doing and had a person with whom she could converse in her native tongue and translate for her, why she did not swear an affidavit herself with the appropriate translator’s jurat? Had Berta given straightforward, first-hand evidence of why she decided to change her power of attorney and what her wishes were for her ongoing care and financial management, this court may have denied Dean the relief sought. This court does acknowledge the evidence of Darlene, that even swearing an affidavit is too stressful for Berta and that it would not be in her interests to swear an affidavit. Unfortunately, Berta is a party to this litigation, and her state of mind and her wishes are at the forefront. Less than compelling evidence was proffered and, accordingly, I find that Dean has met the low threshold required for an order producing the documents requested.

C. Motion to Strike Affidavits of Marie Borges

[28] In response to Dean’s 1920 Application, Darlene and Berta commenced the 3266 Application. In support of the 3266 Application, Berta and Darlene relied on Darlene’s affidavit sworn July 18, 2019, the affidavit of Carlos Pereira sworn July 5, 2018, and two affidavits sworn by Marie Borges both dated July 18, 2019. Dean requests that both affidavits of Ms. Borges be struck in their entirety or else be severely limited on the basis that they are not only hearsay and therefore inadmissible, but also scandalous, frivolous or vexatious, or are otherwise an abuse of process.

[29] Marie Borges is an interpreter who is fluent in English and Portuguese. Berta is illiterate in any language and only speaks Portuguese. In the first paragraph of the first affidavit of Marie Gorges, she swears:

I act as the interpreter for the respondent, Berta D’Amaral Da Silva Botelho (“Berta”) with respect to this Application, and as such I have knowledge of the matters herein deposed, except where stated to be based on my information and belief, in which case I verily believe it to be true. The purpose of this affidavit is to provide the court with those comments and to provide Berta’s voice in those proceedings. Prior to signing this affidavit I reviewed it with Berta who agreed with the contents and adopted them as her own.

[30] The first affidavit is Berta’s response to the 1920 Application, as relayed by Ms. Borges. It speaks to Berta’s knowledge of the proceedings, her denial of Dean’s allegations, her relationship with her children, and her preferences of who should look after her. She expressed knowledge of Dean’s desire for an assessment, that Darlene is helping her with her banking, and that her accounts were currently frozen. Ms. Borges indicates that Berta described that Dean assaulted her, and that Darlene is personally covering her expenses.

[31] The second affidavit is much shorter. This is not Ms. Borges’ summary of Berta’s evidence, but rather evidence of her own observations. In the second paragraph of the second affidavit, Ms. Borges swears:

I make this affidavit for the purposes of advising the court of my own observations in having spent time with Berta with respect to this matter.

[32] Ms. Borges swears in this shorter affidavit that she could see no cognitive limitations in Berta. She observed Berta’s physical limitations and described Berta’s living environment. The remainder of the affidavit describes her sympathy for Berta and her situation.

[33] The use of affidavit evidence on an application is laid out in the Rules. First, r. 4.06(2) states:

An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise. [emphasis added]

[34] Rule 4.06(7) sets out the method in which the evidence of an illiterate person is given in an affidavit. While Ms. Borges did swear that she read the affidavit to Berta and that Berta understood it, she should have had Berta sign it or place a mark. This was not done. Rule 4.06(8) outlines the procedure to be followed if the deponent does not understand the language of the affidavit. This was not followed either.

[35] Rule 39 provides an exception to r. 4.06(2) that requires evidence of first-hand knowledge only. In r. 39.01(5), an affidavit used on an application can contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the facts of the belief are specified in the affidavit.

[36] The phrase “contentious facts” was defined by Farley J. in Ontario (Attorney-General) v. Paul Magder Furs Ltd., 1989 CanLII 4253 (Ont. S.C.), [1990] O.J. No. 63 (H.C.J.) and adopted by Wilton-Siegel J. in Ontario Securities Commission v. 1367682 Ontario Ltd. (De Freitas & Associates), 2008 CanLII 23949 (Ont. S.C.), at para. 6 as “something in dispute or to which there are differences between the contending parties.” It is clear that Berta’s wishes and her mental and physical state are contentious issues as between Dean and Darlene.

[37] The difficulties with affidavits based on information and belief is that the person who provides that information to the deponent is shielded from cross-examination. No doubt, that is why rr. 39.01(5) and 20.02 effectively preclude affidavits on information and belief in respect to contested facts: Armstrong v. McCall, 2006 CanLII 17248 (Ont. C.A.), at para. 33. In the case before me, Darlene clearly states that participation in this litigation is too stressful for Berta. It appears that the intention of Darlene is to shield Berta from cross-examination.

[38] Does this render the affidavits of Maria Borges scandalous, frivolous, vexatious, or an abuse of process? Even if they are, Darlene and Berta argue that this evidence should not be struck in this preliminary manner, and that it should be up to the judge hearing the Application to decide if it is admissible, and if so, what weight it should be given.

[39] The courts have tackled the definition of “scandalous”, “vexatious”, “frivolous”, and what constitutes an “abuse of process” on many occasions. The principles can be summarized as follows:

a) Any fact that is relevant to a cause of action pleaded can be neither scandalous, frivolous, nor vexatious: Brodie v. Thomson Kernaghan & Co., 2002 CarswellOnt 1587, 27 B.L.R. (3d) 246 (S.C.), at para. 28.

b) If a fact has no effect on the outcome of the proceedings, whether true or not, and is inserted solely for atmosphere, it is scandalous, frivolous and vexatious: Brodie, at para. 26; Taylor v. Canada Cartage Systems Diversified GP Inc., 2018 ONSC 617, at paras. 26, 28, citing Canadian National Railway v. Brant, 2009 CanLII 32911, 69 O.R. (3d) 734 (S.C.), at para. 28.

c) If historical facts are pleaded and they have no relevance to the proceedings, they will be struck: Canadian National Railway, at para. 28.

d) A scandalous pleading is one that is irrelevant, argumentative and inserted for colour; it is a pleading that contains bare allegations with no facts to support them or contains unfounded and inflammatory attacks on the integrity of a party: George v. Harris, 2000 CarswellOnt 1714, [2000] O.J. No. 1762 (S.C.), at para. 20.

e) A frivolous pleading is defined in John v. Samuel, 2018 ONSC 5651, at para. 24. It includes an action that is so clearly and palpably bad as to require no argument to convince the courts and would be pronounced as an indication of bad faith on the basis of mere inspection: Eastside Apartments Limited v. Aird Berlis, 2015 ONSC 1379, at para. 44, citing 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., 1997 CanLII 12196, 37 O.R. (3d) 70 (C.J. (Gen. Div.)), at para. 18; Vatamanu v. Baird, 2009 CarswellOnt 8045 (S.C.), at para. 36, citing Elguindy v. Koren, 2008 CarswellOnt 1081, [2009] O.J. No. 764 (S.C.), at paras. 45-48.

f) A vexatious pleading is one that is instituted without reasonable grounds: Vatamanu, at para. 36, citing Elguindy, at para. 46. A vexatious suit has been further defined as one instituted maliciously and without good cause: Samuel, at para. 24.

g) An abuse of process requires the court to control its process and prevent the abuse of procedures that would place the administration of justice into disrepute: Samuel, at para. 24.

h) An abuse of process may be established where the proceedings (a) are oppressive or vexatious and (b) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The doctrine evokes the public interest in a fair and just trial process and the proper administration of justice: Eastside Apartments Limited, at para. 46, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, at para. 35.

[40] With respect to Berta and Darlene’s argument, a helpful analysis of this issue was set out in Gutierrez v. The Watchtower Bible and Track Society of Canada et al. 2019 ONSC 3069. In this decision, Perell J. stated that a motion to strike paragraphs from an affidavit is typically made at the same time as the primary motion. The “general and prevalent rule is that it is for the court that hears the motion to determine whether material should be struck from an affidavit, and a pre-emptive motion should be determined only in the clearest cases”: para. 28. That said, Perell J. also acknowledged that each motion should be considered on a case by case basis. In certain cases, a hybrid approach could be taken where some paragraphs are struck and others left to the judge hearing the motion or application: para. 32.

[41] He summarized at para. 35 as follows:

By way of my own summary, in the majority of cases, rather than a pre-emptive motion to strike affidavits in whole or in part for non-compliance with the Rules of Civil Procedure, it is preferable that the judge or master hearing the substantive motion rule on the admissibility of the evidence. However, there is no absolute rule, and a pre-emptive motion may be appropriate where either efficiency or fairness require that disputes about the factual record be determined before the substantive motion. On a case-by-case basis, it will be for the judge or master hearing the pre-emptive motion to decide whether to strike the impugned material or to defer the issues of admissibility to the judge or master hearing the substantive motion.

[42] The “hybrid approach” referred to by Perell J. was applied by Emery J. in Holder et al. v. Wray et al., 2018 ONSC 6133 and by Harvison Young J. (as she was then) in Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316.

[43] I find this an appropriate case to adopt the hybrid approach. If an affidavit is based on information and belief, it is prima facie hearsay. Hearsay is allowed under the Rules in certain circumstances, such as rr. 39.01(4) and 39.01(5). In addition, hearsay can be admissible if: it is not tendered for the proof of its contents, it falls within a traditional exception to the hearsay rule, or it can be admitted under the principled exception to the hearsay rule: see Newmarket (Town) v. Halton Recycling Ltd., (2006) 23 M.P.L.R. (4th) 227 (Ont. S.C.), at para 15. In a preliminary motion such as this, it is difficult for a court to do a fulsome analysis of whether affidavit hearsay should be admitted under the principled exception approach. On a preliminary motion to strike, unless it is plain and obvious that the affidavit would not be admitted under any circumstances, it is best left to the judge who hears the application in its entirety to assess the overall necessity and reliability of the affidavit evidence presented.

i. First Borges Affidavit

[44] This affidavit is, for the most part, hearsay. The facts to which Ms. Borges attests are contentious – they are the very issues before the court. The evidence contained therein, though, if admitted for the truth of its contents under an exception to the hearsay rule or under the principled exception to hearsay rule, is relevant to the issues before the Application Judge. To strike this evidence at this preliminary juncture would usurp the rule of the application judge who must assess the evidence in its totality when deciding the issues before him or her. Upon hearing the application, this affidavit may be struck or given little weight, but it should not be struck at this stage.

ii. The Second Borges Affidavit

[45] This affidavit is not hearsay. It is Ms. Borges own evidence of what she observed. That said, there are portions of this affidavit that should be struck.

[46] In paragraph 5, Ms. Borges states: “There were no cognitive limitations that I could see”. She then continues and provide the facts in support of her opinion. The first sentence, namely her opinion, is of no possible relevance to this court as her opinion evidence has not been qualified. Her opinion will have no bearing on the final decision of the Application Judge. The remainder of her comments (about how easily they spoke Portuguese and the nature of their conversation) are facts that may assist the Application Judge. Accordingly, only the first line of this paragraph will be struck.

[47] In paragraph 6 of this affidavit, again, Ms. Borges starts with an opinion on Berta’s physical limitations. She then followed with the facts that supported that opinion. As indicated above, Ms. Borges is not a doctor or an expert in mobility. Only her observations of Berta’s living environment are relevant.

[48] In paragraph 6, Ms. Borges also provides an opinion about the “energy” of the home or lack of “negative influence”. She also opined on whether she felt Berta felt threatened or was being kept against her will. She opined that Berta was happy. Again, Ms. Borges is not a psychiatrist, or a therapist. Her opinion of Berta’s mental or emotional state is inadmissible as unqualified expert opinion evidence. It is clear that her evidence in this regard would not be relevant to the Application Judge. Again, evidence of facts is relevant, but the rest is not.

[49] Paragraph 7 of Ms. Borges’ affidavit should be struck in its entirety. Her sympathy and her desire for Berta to live a stress-free life, both emotionally and financially, are in no way relevant to the Application Judge’s decision of whether the powers of attorney’s are valid.

[50] Ms. Borges has not indicated that she has expert qualifications, so there are no amendments that could assist with the admissibility of these statements. Also, evidence of her sympathy or hopes for Berta cannot be amended in such a way that will now make them relevant. Accordingly, no leave to amend this affidavit will be granted.

D. Striking Schulman, Matthews & Jaworski Letters

[51] Dean’s motion with respect to the medical reports of Dr. Schulman and the medical letters of Dr. Matthews are now moot. Since this motion was brought, Dr. Schulman and Dr. Matthews have since attached their letters to sworn affidavits. Dr. Schulman has included his credentials in his reports and has sworn an acknowledgement of his expert duty. There is ample jurisprudence to support the principle that r. 39.01(5) does not apply to affidavits sworn by expert witnesses: Attorney General (Ontario) v. 855 Darby Road, Welland et al, 2017 ONSC 4953, at para. 40.

[52] With respect to Mr. Jaworski’s letter, he is a physiotherapist within the Local Health Integration Network (“LHIN”) who provided an assessment of Berta’s needs in the home in August 2018. Darlene used this assessment to determine what changes or additions she had to make in her home to accommodate her mother. His recommendations, in letter form, where made an exhibit to Darlene’s affidavit. Darlene has advised in a subsequent affidavit that Mr. Jaworski’s employer has a policy that the physiotherapists should only write letters with their recommendations, not swear affidavits.

[53] Mr. Jaworski’s letter is something received by Darlene. There is no reason why she cannot include this piece of evidence as part of her narrative and to provide an explanation of why she took the steps that she did. It will be up to the judge hearing the application to decide what weight should be given to it.

E. Access to and Preservation of Berta’s Assets

i. Berta’s Bank Accounts

[54] The parties agree that Berta had funds in the BNS Account and the RBC Account. The BNS Account was joint with Dean. Dean indicates this was done to assist his mother with her expenses. He does not assert that he has an interest in these funds.

[55] While no direct evidence was given on this point, it appears that the banks froze Berta’s bank account because they were either unsure which power of attorney was valid or enforceable, or were unsure of Berta’s capacity.

[56] In Darlene’s most recent affidavit, she advises that, once the Bank of Nova Scotia received a copy of Dr. Shulman’s report, they were agreeable to allowing Berta to have access to BNS Account. With Darlene’s assistance, Berta removed her money from the BNS Account and has opened two new accounts to which Berta has unfettered access. As of February 2020, these two accounts had a combined balance of approximately $28,000.

[57] The remainder of Berta’s funds are in the RBC Account. In March 2020, Darlene attended at the Royal Bank of Canada and presented three invoices in Berta’s name: one for the property taxes on the Property; one for insurance on the Property; and one for a Berta’s lawyer, a retainer invoice for this litigation. The bank paid the property taxes and house insurance directly and issued a draft for Berta’s lawyer. The balance of this account was then $816,485.35. The Royal Bank will not give either party has access to this account unless they present a bill in Berta’s name, for which payment will be made directly.

[58] Darlene wants the restrictions lifted. If they are lifted, she wants to be reimbursed for her expenses (which she claims Berta wants) and to have ongoing access to these funds to support Berta with her current needs. Dean wants a preservation order, thereby securing the funds (and the Property) with a small monthly allowance to be paid to his mother. He is fearful that if Darlene has access to the money, she will take or spend it all.

[59] Whether or not the freeze on the bank accounts is lifted or not, the money in the RBC Account is for Berta alone, and to be used as she wishes and for her sole benefit.

[60] Dean seeks a preservation order pursuant to r. 45. As cited in BMW Canada Inc. v. Autoport Limited, 2019 ONSC 4299 (Div. Ct.), at para. 53, the test to be applied under r. 45 is as follows:

a) the property sought to be preserved is the property in question in a proceeding or relevant to an issue in the proceeding;

b) there is a serious issue to be tried with regard to the property; it is not required that there be a serious issue with respect to a party’s claim to the asset itself;

c) the interim preservation or custody of the property is necessary to enable a party to advance or defend its claim; and

d) the balance of convenience favours granting the relief sought by the applicant or moving party.

[61] Charney J. continued that the test as set out in Taribo Holdings Limited v. Storage Access Technologies Inc. (2002), 27 C.P.C. (5th) 194 (Ont. S.C.) may still be the appropriate test in cases that involve a dispute over ownership of an asset, but it is not appropriate in cases that arise in other contexts to which r. 45.01 may, on its face, apply: para. 54.

[62] After reviewing the test as set out in BMW, I find that Dean has satisfied the court that a preservation order is appropriate with respect to the RBC Account, with provisions allowing Berta to be properly supported. This account is relevant to the proceeding before the court. The serious issue in this litigation is not about the property itself, but rather the parties’ ability to access it. At this juncture, given Berta’s physical and language restrictions, she is unable to simply attend the bank on her own, even if her capacity to do so was without question. It is important that Berta’s wealth, and her ability to support herself to the level required, be protected. Finally, the balance of convenience favours a preservation order. With an appropriate order made to ensure that Berta has an appropriate monthly income, Berta will not be inconvenienced, but neither Darlene nor Dean will have unfettered access to Berta’s funds.

[63] Such a preservation order will not attach to Berta’s new bank account at the Bank of Nova Scotia. That being said, Darlene is to ensure that any and all transactions in that account are accounted for as if she were acting as a power of attorney and she was required to pass her accounts.

i. Preservation of the Property

[64] In his Amended Notice of Application, Dean has sought an interest in the Property. In particular, he seeks a declaration that Berta holds all or part of the Property in trust for him. He also seeks a restitutionary order for all maintenance and renovations on the Property. Finally, he seeks a constructive trust over the Property.

[65] No request has been made for a Certificate of Pending Litigation. Given Berta’s stated intention to retain the Property at this time, it does not appear to be urgent. If Dean wishes to have a certificate of pending litigation registered against title to the Property, he must serve the opposing parties with the appropriate motion.

ii. Reimbursement of Expenses

[66] While this litigation proceeds, Berta needs to be supported. Berta currently owns a home (assumed to be unencumbered) and approximately $850,000 in cash in the bank. Berta could reside at the most exclusive senior’s residence at a rate of $10,000 per month for the next seven years before she would be required to even sell her house. She has every right to do that. The life savings she accumulated over the years are there to assist her in her senior years and to make her life as comfortable as possible. She deserves no less. It is not Berta’s obligation to preserve her fortune for the benefit of her future beneficiaries. If, after taking care of herself, there is any money left, it is a gift to her beneficiaries, and should be regarded as such.

[67] To be clear, this court is not endorsing extravagant spending behaviour. Any person seeking to be reimbursed expenses related Berta’s care must show that these expenditures are reasonable and appropriate. That being said, a “nickel and dime” approach to the expenditures for Berta’s care will not be tolerated. If an elderly person is of limited means, and only has limited funds to support themselves, a more frugal approach is warranted. But when an elderly person saved their money wisely throughout their life and has saved an amount that enables them to support themselves in a comfortable manner in their latter years, the court should not allow any family or potential beneficiaries to restrict or encumber that person’s ability to enjoy the fruits of a life time of labour.

[68] Darlene has provided a stack of receipts of money she has expended for the benefit of Berta. Except for the amounts paid directly by the Royal Bank of Canada, Darlene has paid for these out of her own pocket. She seeks to be reimbursed accordingly.

[69] It is not the court’s function at this stage to dive into an analysis of these expenses as if this were an application to pass accounts. That being said, some of these expense claims are clearly for the benefit of Berta and should be reimbursed. Those other expenses that are not so clear cut, or which may also benefit Darlene or her family, should be reserved for trial or the application.

[70] I have reviewed the summary list provided by Darlene, which is attached as Schedule A hereto. Those marked with an “*” are to be reimbursed to Darlene forthwith from the RBC Account. The remainder of the expenses are to be left to trial. Dean’s concession of a $5,000 payment barely covers the special equipment required to accommodate Berta in Darlene’s home. Even if she stayed in her own home, these accommodations would be required.

[71] The expenses that are properly reimbursed at this time are those expenses with reference to the Property, for medicine, clothes, adult diapers (except for the $1,500 receipt which should go to trial), toiletries, linens, porch lift, barrier cream, costs associated with electric bed, commode chairs, ambulance transportation, estate lawyers fees, and her doctor’s fees. These total $16,177.06 and should be reimbursed immediately.

iii. Monthly Allowance

[72] Both Darlene and Dean recognize that Berta may need a monthly allowance in addition to her pension income. Darlene claims she needs $5,316 per month to support Berta and her medical needs. Dean believes $1,500.00 is sufficient.

[73] Bearing in mind my earlier comments, I find that the sum of $4,000.00 per month is a minimum reasonable sum required to care for Berta and the Property. Given that Berta receives a pension income of approximately $1,400 per month, and assuming that Berta would contribute at least some of her pension towards her support, I will reduce the extra amount to be removed from the RBC Account to $3,000 per month. These are expenses that appear uncontentious upon a preliminary review. This sum is ordered without prejudice to either party seeking to increase or decrease this amount at trial and is without prejudice to Darlene’s claim for a monthly allowance for room and board.

[74] The allowable costs at this early juncture include monthly medication, toiletries, personal items, haircuts, physiotherapy, podiatry, and PSW support. Monthly costs associated with the Property should also be paid, namely property taxes, insurance, utilities, and yard maintenance. Darlene should keep track of all these expenses as if she were acting as a power of attorney and was required to pass her accounts.

IV. Conclusion

[75] For the foregoing reasons, I make the following orders:

a) Dean’s motion for an order that Berta undergo a capacity assessment is dismissed;

b) Dean’s motion for production of the solicitor’s files, as set forth in paragraph 33 of his Amended Notice of Motion, is granted with respect to Carlos Pereira of Pereira Walter LLP;

c) Dean’s motion for production of medical documents, as set forth in paragraph 32 of his Amended Notice of Application, is granted with respect to the following service providers or institutions, and for the following time periods only:

1. For Dr. Sandra Guirguis, from June 1, 2017 to December 31, 2018;

2. For Josie DiPlacito and Dr. Margaret Grant, the Victorian Order of Nurses, Home and Community Care (Mississauga Halton Local Health Integration Network), Trillium Health Partners (Mississauga Hospital), for 2018 only;

d) The remainder of Dean’s request for production of medical documentation, as set out in paragraph 32 of his Amended Notice of Application, is dismissed;

e) Any cost for the production of said records shall be borne initially by Dean, without prejudice to his right to seek contribution or reimbursement at trial;

f) Upon receipt of said documents, Dean shall provide copies immediately to counsel for Darlene and Berta;

g) Dean’s motion to strike the first affidavit of Marie Borges sworn July 18, 2019 is dismissed without prejudice to his right to seek this relief at the hearing of the application;

h) Dean’s motion to strike the second affidavit of Marie Borges, sworn July 18, 2019, is granted as follows:

1. The line “There were no cognitive limitations that I could see” in paragraph 5 is struck, with no leave to amend;

2. All of paragraph 6, except for “During our visits she remained in bed” and “Her room is very pleasant and clean. It was bright with a picture window facing the front of the house”, is struck with no leave to amend; and

3. All of paragraph 7 is struck, with no leave to amend.

i) Dean’s motion to exclude the report of Dr. Richard Schulman dated August 15, 2019, the letters of Dr. Nicole Matthews dated June 6, 2019 and August 6, 2019, and the letter of Mr. K. Jaworski dated August 14, 2019 is dismissed;

j) Dean’s motion for a preservation order in relation to the Property, is dismissed, without prejudice to him bringing the appropriate motion, on notice to all parties;

k) The Royal Bank of Canada shall ensure that the funds in the RBC Account are not dispersed, transferred, or otherwise depleted, except in accordance with the following:

1. The Royal Bank of Canada shall forthwith release to Darlene from the RBC Account the sum of $16,177.06 for reimbursement of expenses paid for the benefit of Berta, without prejudice to either party to argue that more or less should be paid at trial;

2. The Royal Bank of Canada shall release to Darlene on November 1, 2020, and on the first of each month thereafter, the sum of $3,000.00 for the anticipated monthly out of pocket expenses associated with the care of Berta; or

3. As otherwise directed by further court order.

l) The funds payable to Darlene in accordance with subparagraph 75(k)(2) shall cease immediately upon the first of the month immediately following Berta’s death;

m) Darlene shall account for these monies paid to her in subparagraph 75(k)(2) in a manner similar to as if she was acting as a power of attorney and was required to pass her accounts;

n) The funds paid to Darlene in accordance with subparagraph 75(j)(2), are without prejudice to both parties right to argue at trial that this sum should be higher or lower, and without prejudice to Darlene’s claim for a monthly sum for room and board;

o) Darlene shall account for any other funds in any other bank account in the name of Berta, if she was acting as a power of attorney and was required to pass her accounts; and

p) The costs of these motions shall be reserved to the judge hearing the Application or the trial of the remaining issues.

Fowler Byrne J.

Released: October 23, 2020

COURT FILE NO.: CV-19-1920

DATE: 2020 10 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DINATE (DEAN) BOTELHO

Applicant

• and -

ODALEIA (DARLENE) FAULKNER, BERTA D’AMARAL DA SILVA BOTELHO, THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE

Respondents

REASONS FOR JUDGMENT

Fowler Byrne J.

Released: October 23, 2020