COURT FILE NO.: CV-20-00000534-00

DATE: 2021 05 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Leonie McDowell

Applicant

• and -

Leon Patrick McDowell, Icolyn Graham, David Graham, and The Public Guardian and Trustee

Respondents

Dalkeith Palmer, for the Applicant

Leon Patrick McDowell, Not Present.

Joel E. Levitt, for the Respondents Icolyn Graham and David Graham

The Public Guardian and Trustee, Not Present.

HEARD: February 22 and 25, 2021

REASONS FOR JUDGMENT

FRAGOMENI J.

[1] The Applicant, Leonie McDowell (“Leonie”) seeks relief from the Court for the removal of Power of Attorney (“Attorney”) for property and personal care, given to the Respondent, Icolyn Graham (“Icolyn”), by Leonie’s father, Leon Patrick McDowell.

[2] Icolyn opposes this Application on the basis that she has properly complied with her obligations as Attorney and all real estate transactions made were either made by the Respondent, Leon Patrick McDowell (“Leon”) himself without undue influence, or by Icolyn in accordance with legal advice received by her counsel in accordance with the provisions of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).

Overview and Introduction

[3] Leon was born on September 12, 1949. He married Gloria McDowell on August 8, 1969. They had two children, Leonie and Lloyd McDowell.

[4] Leonie was born on August 24, 1973 and resides in Brampton with her two children.

[5] In 2011, Leon and Gloria McDowell separated on an informal basis. Neither party has filed for a Divorce and there has never been a finalization of the property issues.

[6] They continued to amicably operate their business together, Gem West Indian Groceries (“Gem’s”), for several years.

[7] Some time after the separation, Leon commenced a relationship with Icolyn.

[8] Icolyn is forty-seven years old and was born in Jamaica. She immigrated to Ontario from Jamaica in 2010, and settled in Brampton, Ontario.

[9] Icolyn came to Ontario without her children. The children’s father remarried in Jamaica. Icolyn was divorced in February 2013.

[10] Icolyn met Leon after arriving in Ontario when she began shopping at Gem’s.

Position of the Applicant

Initial Concerns Raised by the Applicant

[11] Over the six years that Leon had been with Icolyn, Leonie noticed that Leon’s mental capacity and memory was diminishing.

[12] In September 2018, Leon went missing for two days. He was eventually located and brought to the Brampton Civic Hospital.

[13] It was at this point in time that Leonie became aware of the fact that her father, Leon, was in a romantic relationship with Icolyn. Further, it was only while at the hospital that she and her family were advised for the first time that Leon had granted a Power of Attorney to the Icolyn.

[14] After Leon left the hospital, Icolyn would not allow Leonie to visit her father unless Icolyn was home. Leonie was not welcome inside the home.

[15] In October 2019, Leonie was advised that Icolyn had moved Leon out of his home at 9 Dartford Road, Brampton (“Dartford Property”), and into the Village of Sandalwood Park Nursing Home (“Sandalwood”). Neither Leonie nor her family were aware of this move or consulted.

[16] Leonie ascertained that at about this time, Leon owned two properties:

• The Dartford Property
• The Skegby Property, situated at 20 Skegby Road, Brampton.

[17] Leonie’s searches of the title to those properties revealed the following:

• The searches revealed that in 2015 the Dartford Property had been transferred from Leon to Leon and Icolyn as joint tenants in 2015 for two dollars consideration. In 2019 it was again transferred from Leon and Icolyn to Icolyn alone, using the power or attorney for property for a consideration of two dollars.
• Leonie also discovered that the Skegby Property had been transferred to Icolyn and her son David as joint tenants in 2017 for $560,000.00 consideration.
• The Transfer for the Dartford Property states that Icolyn is Leon’s spouse; however, the Transfer for the Skegby Property, which occurred two (2) years later, indicates that the transfer was not made to a spouse. Both properties also had numerous mortgages and charges that were taken out and subsequently discharged over the years.

2014 - Change to Last Will and Power of Attorney

[18] Leonie sets out the following in her Factum with respect to Leon’s Will and Power of Attorney:

• In June of 2014, Leon drafted a last will and testament along with power of attorney documents for both property and personal care, respectively.
• Icolyn was named as the attorney for both powers of attorney, while the substitute attorney was listed as Conrad Blackwood (“Conrad”). Icolyn states that she was unaware that Leon had done this at the time and that she did not review either the Will or the powers of attorney until early 2018. At her cross examination; however, she confirmed that in 2014 Leon came home, handed her an envelope, and said that the documents inside were to protect her from Gloria. Icolyn further confirmed that the powers of attorney were in that envelope. She also confirmed that Leon brought Conrad home to introduce him to her, and that Leon advised her that Conrad’s name was on the documents in the envelope.
• In or about the same time, Leon also drafted a last will and testament (the “Will”). Icolyn is named as the sole estate trustee, with Conrad listed as the alternative. Notably, section 35(c) of the Will provides that the Skegby Property will be sold and the proceeds shared equally among his grandchildren who are alive at the time of his death.

2015 - Transfer of the Dartford Property

[19] On April 4, 2015, this property was transferred from Leon to Leon and Icolyn as joint tenants for a consideration of two dollars ($2.00). Icolyn asserts that this transfer was authorized by Leon to express his love and devotion to her and not by way of the Power of Attorney.

2017 - Transfer of the Skegby Property

[20] Leonie sets out the following chronology of events relating to the Skegby Property:

• In August 2017, the Skegby Property was transferred from Leon to Icolyn and David for $560,000.00 as joint tenants. This transfer was not authorized by way of the Power of Attorney.
• In her affidavit, Icolyn states that Leon began to discuss the possibility of selling the Skegby Property in 2017 and that Icolyn proposed that they instead try to “keep it in the family” and offered to purchase it herself. She states that her credit was not strong enough at the time and that it was “agreed” that her son David would assist her in securing a mortgage for the purpose of the purchase.
• Two days before the Skegby Property was transferred to Icolyn a mortgage was taken out for $200,000.00 from Fountain Financial Consulting Inc. At her cross examination Icolyn was asked what the $200,000.00 was used for. Icolyn repeated that it was used “towards the house” and could not answer where the money actually went and where it was deposited. In her answers to undertakings, Icolyn provided that a sum of $185,026.49 was received and deposited into a bank TD Canada Trust bank account help jointly by Icolyn and Leon.
• The funds due on closing for this transfer were $552,831.85. Some of the funds disbursed from this total included:
  • $149,238.70 – to discharge a mortgage with the Toronto-Dominion Bank.
  • $24,771.78 – to discharge a mortgage with Home Trust Company.
  • $199,388.60 – to discharge a mortgage with Soloway Professional Corporation, made payable to Fountain Financial Consulting Inc.
  • $158,242.00 – paid to Leon McDowell.
• According to Icolyn, the $158,242.00 was received and deposited into a bank account at TD Canada Trust held jointly by her and Leon.
• A new mortgage was obtained for $375,000.00 in favour of Computershare Trust Company of Canada (the “Computershare Mortgage”). Icolyn and David are listed as the chargors. At her cross examination Icolyn stated that her mortgage payments for the Computershare Mortgage were made from her own Bank of Montreal account.
• With the purchase price of the transfer, along with the Computershare Mortgage, Icolyn would have paid approximately $188,000.00 of her own funds to transfer the property. At her cross examination Icolyn stated that this money came from the Fountain Financial mortgage; specifically, she stated that Leon took out the mortgage for approximately $200,000.00, gave the money to Icolyn, and Icolyn used that money to purchase the property; however, when asked to provide proof of payment of this mortgage as an undertaking, Icolyn advised that payment was actually made from the joint BMO account held by Icolyn and Leon.

2019 – Transfer of the Dartford Property and Move to Long Term Care

[21] On December 27, 2019, this property was transferred from Leon to Icolyn, using the Power of Attorney for property for two dollars ($2.00). The transfer states that Icolyn is Leon’s spouse.

[22] On February 20, 2020, Icolyn sold this property for $700,000.00. The net proceeds from the sale were $355,325.12. The sum of $228,497.00 was used to purchase a home in Barrie. The remaining sum of $126,828.12 is being held in trust.

2020– Purchase of Barrie Property

[23] On January 29, 2020, Icolyn and her son, David Graham (“David”), entered into an Agreement of Purchase and Sale to sell the Skegby Property for a total of $665,000.00.

[24] On January 21, 2020, Icolyn and David intended to purchase a new property in or around Barrie, Ontario, which had a closing date of March 17, 2020, for a purchase price of $720,000.00. The Agreement of Purchase and sale lists only Icolyn and David as purchasers; Leon was not included. At her cross examination, Icolyn stated that she was advised by her mortgage broker and her lawyer not to include Leon as a purchaser.

Bank Accounts

Royal Bank of Canada

[25] Leon and Icolyn have two shared Royal Bank of Canada (“RBC”) accounts.

Bank of Montreal

[26] This joint account is the account Icolyn uses and the transactions in and out of this account are strictly hers.

Toronto-Dominion

[27] There are two accounts, both opened in July 2017.

[28] In her affidavit sworn May 22, 2020, Icolyn states that throughout the period of time that she and Leon held these joint bank accounts they would both access the accounts for various expenses. She states that they operated the accounts as “family accounts” without distinction as to who deposited or withdrew funds. She further confirms that after September of 2018, Leon no longer had independent access to any account.

Grounds Advanced by the Applicant for the Relief requested

[29] Leonie advances the following grounds in support of her position:

• In 2014, Leon did not have the capacity to sign the Power of Attorney.
• Even if Leon had the required capacity, Icolyn exercised undue influence on Leon to grant her the Power of Attorney.
• The circumstances of the granting of the Power of Attorney are highly suspicious. Icolyn preyed on a vulnerable man, a man who is 24 years her senior, who had recently separated from his wife, and a man who as early as 2014 was exhibiting early signs of dementia.
• There is strong and compelling evidence of misconduct and neglect on the part of Icolyn.
• Icolyn is not acting in the best interest of Leon.
• Icolyn has breached her fiduciary duties to Leon.
• The transfer of both the Dartford Property and the Skegby Property out of Leon’s name and into Icolyn’s name is improvident and unconscionable.
• The property was sold subject to a testamentary gift.
• Icolyn failed to consult with family and friends contrary to section 32 of the SDA.
• Icolyn came to Canada with nothing and now controls all of Leon’s assets.
• Icolyn has alienated Leon from his family.

Personal Care

[30] Leonie submits that Icolyn did not exercise her duties diligently and in good faith or in her father’s best interests.

[31] In her Factum, Leonie sets out the following factors the Court must consider on this issue at paragraphs 131 to 137, as follows:

• As per section 66(4), in deciding what the person’s best interests are, the guardian shall take into consideration:
  • The values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;
  • The person’s current wishes, if they can be ascertained;
  • The following factors;
    • Whether the guardian’s decision is likely to
      • Improve the quality of the person’s life
      • Prevent the quality of the person’s life from deteriorating, or
      • Reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate
    • Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.
• In 2018, Leon went missing for two days while under Icolyn’s care. His contact with his family and friends has been largely cut off. Leon shares a bedroom with a non-verbal resident at Sandalwood and [has] little to no stimulation during the day. Icolyn has refused to accept help from Leonie, and has subverted many of Leonie’s attempts to maintain Leon’s relationship with his friends and other family members, including the incident at Christmas where Icolyn removed Leon from Sandalwood without advising his family.
• As per section 66(6), the guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.
• Icolyn has failed to uphold this duty. Examples of this failure included the following:
  • When Leonie’s brother attended at the hospital after Leon’s disappearance Icolyn forced him to leave.
  • When Leonie attempted to visit Leon after his disappearance at his home, Icolyn would not allow her to enter and advised that she had to stay outside on the porch.
  • Various family members and friends of Leon’s have advised Leonie that they have been unable to see Leon; if they attended at Leon’s home they would be told that he could not take visitors.
  • In September of 2018 Leonie visited at Leon’s home. While there, Leon advised that he wanted to leave with Leonie and her daughter. Icolyn’s son then became verbally abusive towards Leonie’s daughter when she attempted to help Leon leave.
• Leonie gave Leon a cell phone so that she could communicate with him, but Icolyn confiscated the phone because she alleged that Leon had called the police to report abuse by her son.
• A doctor’s note from February 12, 2020, states that Icolyn wanted to consider moving to Barrie and [bring] Leon with her to be moved into a long term care home there. The note continues on to say that Icolyn reported that “she is not wishing to have the rest of the family notified as to the transfer”.
• As per section 66(7), the guardian shall consult from time to time with,
  • Supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and
  • The persons from whom the incapable person receives personal care.

Position of the Respondents

[32] Icolyn and David oppose the Application on the basis that Icolyn has properly complied with her obligations as Attorney and all real estate transactions were either made by Leon himself, without undue influence, or Icolyn in accordance with legal advice received by her counsel in accordance with the provisions of the SDA.

Leon’s Intention to treat Icolyn as His Spouse

[33] Icolyn submits that from the time she and Leon entered into a relationship and going forward, Leon treated her as his spouse. This intention on the part of Leon is evidenced by the following:

• Updated his life insurance policy in April 2013 to name Icolyn as his beneficiary;
• Named Icolyn as his beneficiary under a 2014 Life Insurance Policy with RBC Insurance;
• Opened a joint baking account at the Bank of Montreal in 2013;
• Opened two joint bank accounts at the Royal Bank of Canada in 2013;
• Opened two joint accounts at the Toronto-Dominion Bank in July 2017.

[34] Icolyn submits that all of the accounts were treated as shared money.

[35] Icolyn submits further that the following transactions also support her position that Leon treated her as his spouse:

• In 2014, Jerry Saltzman prepared Wills and Powers of Attorney for Leon. The Will named Icolyn as the primary estate trustee and also provided for a gifting of the Dartford Property to her upon Leon’s death. The Powers of Attorney both named Icolyn as his Attorney. Icolyn was not involved in the process of preparing or signing these documents. In that regard, Mr. Saltzman has confirmed that he received all instructions with respect to the documents from Leon and that he had no concerns related to Leon’s capacity at the time the documents were drawn.
• In 2015, Leon and Icolyn attended at the law offices of Peter Rickards on Leon’s initiative, at which time Leon instructed Mr. Rickards to add Icolyn’s named on title to the Dartford Property as a joint tenant to express his level of love and devotion to Icolyn. Mr. Rickards confirms that he received instructions only from Leon in relation to the transfer. Icolyn had never previously met with Mr. Rickards, who was Leon’s lawyer.
• In 2018, Icolyn purchased burial plots for herself and Leon to ensure that they would be buried together.

[36] The transfer of the Dartford Property into joint tenancy was authorized by Leon and not by way of Power of Attorney. In the transfer document, Leon referenced Icolyn as his spouse.

The Skegby Transfer

[37] In 2017, Leon wished to sell the Skegby Property. Icolyn wished to keep it in the family and proposed she purchase it for value. Her son David was going to assist her in securing a mortgage.

[38] On August 4, 2017, the Skegby Property was transferred to Icolyn and David for $560,000.00. Icolyn and David took out a mortgage with Computershare Trust Company of Canada. Icolyn submits that there is no evidence put forward by Leonie that this property was sold for less than fair market value. Leon and Icolyn and David were represented by separate law firms. A formal Agreement of Purchase and Sale was executed.

Refinance and Sale of Dartford and Skegby Properties

[39] With respect to the sale of the two properties, Icolyn sets out the following chronology of events:

• In December of 2019, Icolyn was forced to take out a new mortgage on the Dartford Property in order to pay out the Manulife mortgage that had been placed on the Dartford Property by Leon in 2012 at the time of purchase.
• When seeking to obtain a new mortgage, Icolyn was told by both her mortgage broker and her lawyer that in order to close the refinance transaction she would need to transfer the Dartford Property into her own name and she did so through her lawyer Priya Tewathia.
• In doing so, Icolyn followed the advice provided to her but she continued to treat the Dartford Property as a joint asset. It was never her intention to take the Dartford Property as her own and the monies received out of the refinance transaction were immediately placed in the joint bank account belonging to Leon and Icolyn.
• When obtaining the mortgage, it was clear to Icolyn that she would be unable to carry both properties and that the refinance was only a transitional step towards the sale of the properties. A summary of income and expenses in 2019 while holding the Skegby Property and Dartford Property, makes clear that a large monthly deficit was being incurred prior to their sale.
• On January 8, 2020, Icolyn entered into an Agreement of Purchase and Sale to sell the Dartford Property and on January 29, 2020, she entered into an Agreement of Purchase and Sale to sell the Skegby Property. Icolyn also put down a deposit of $20,000.00 to purchase a property in Barrie.
• The sale of the Dartford Property closed on February 21, 2020, at a purchase price of $700,000.00 from which Leon and Icolyn received $355,325.12. The monies were initially deposited into a joint bank account held by Icolyn and Leon, and then moved by Icolyn into the trust account of Fryer Levitt.
• The Skegby Property closed on March 16, 2020, and on the sale of that property Icolyn and David received net proceeds of sale of $270,000.00 which sum was applied towards the purchase of the Barrie Property which closed on March 17, 2020.
• Title to the Barrie Property was taken by Icolyn, Leon and David as joint tenants.

Leon’s Mental Status

[40] Icolyn sets out that it was in mid-2018 that Leon began suffering from dementia. In or about September 2018, Leon went missing for a period of two days and his disappearance was reported to the police. Icolyn had noticed that in the spring of 2017 Leon was becoming more forgetful.

[41] Icolyn submits that there was no indication by Leonie or her mother about Leon’s capacity at this time. About this time, Leonie and her mother attended at a lawyer’s office who prepared a transfer, which was signed by Leon and Leonie’s mother to allow for the transfer of 680 Rexdale Boulevard from Leonie’s mother and Leon, to herself. Ultimately the transfer did not proceed but no concerns were raised about Leon’s mental capacity.

[42] Icolyn takes the position that prior to Leon having gone missing, neither Leonie, her mother, or her brother had ever come to visit Leon since Icolyn had begun living with him. They alternately indicate that they refused to visit Leon because they disapproved of his relationship with Icolyn, while at the same time maintaining they were not aware of the relationship until after Leon’s disappearance in 2018. After his disappearance, his daughter and son came by approximately three times. By mid 2019, it was becoming apparent to Icolyn that she could no longer care for Leon at home even with the programming that she had enrolled him in, and she therefore sought out a care facility for him.

[43] Icolyn submits that there are serious concerns about Leonie’s evidence. Icolyn points out the following concerns as set out in her Factum of paragraphs 68 to 77:

• At paragraph 5 of the Applicant’s Affidavit dated January 24, 2020, the Applicant states that she did not become aware that her father was in a romantic relationship with “Suzette” until her father went missing in 2018. On cross-examination the Applicant admitted that she knew her father was in a relationship with Suzette but did not know Suzette was Icolyn Graham, and in her Reply Affidavit she indicated that she specifically did not attend at her father’s house prior to 2018 because she disapproved of the relationship between her father and Icolyn Graham.
• At paragraph 8 of her Affidavit she indicates that over the years she noticed that her father was making errors on cheques and orders while working at her mother’s store, to but on cross-examination she admitted that her father worked at the store only between 2010-2017, and that during that period of time she maintained a full time job at Bell Canada and only worked at the store on several holiday evenings a year.
• [Paragraph] 16 of the Applicant’s Affidavit makes an accusation that the Respondent Icolyn Graham tried to bar the Applicant’s brother from seeing his father at the hospital after Leon was found in 2018. The allegation is made on information and belief from her brother who has not sworn an Affidavit in this proceeding.
• Paragraph 19 of the Applicant’s Affidavit makes allegations that the Applicant had been advised that friends and family were being denied access to Leon [McDowell], without providing the source(s) for such information.
• At Paragraph 20 of her Affidavit, the Applicant provides evidence of an alleged assault of her father by one of Ms. Icolyn’s sons, but fails to provide any source for such information.
• At paragraph 23 of her Affidavit the Applicant again alleges that she was being advised by friends and family that they were being denied access to her father, but again provides no source(s) for such information.
• At paragraph 26 of her Affidavit the Applicant again alleges that the Dartford Property was transferred into Ms. Graham’s name while Ms. Graham was acting as Power of Attorney for Leon McDowell, though Exhibit “B” to her Affidavit makes clear that no power of attorney was used in relation to the said transfer.
• At paragraph 28 of her Affidavit, the Applicant alleges that the nursing home had advised her that Ms. Graham has made various allegations against her and her family but she provides no specifics source for such information.
• At paragraph 35 of her Affidavit, the Applicant alleges (without any supporting evidence) that the sale price of $560,000.00 for the Skegby property was below market value yet on her Management Plan she estimates the current value of the Dartford and Skegby Property at $1,000,000.00 and on cross-examination she advised that such figure was based on a “fifty/fifty” split between the properties.
• Paragraphs 40 – 42 of the Applicant’s Affidavit make allegations against Ms. Graham as to Mr. McDowell’s treatment at the care facility without providing the source of such information.

[44] Icolyn submits that the following factors ought to be considered by the Court in its analysis:

• The Court shall be wary of terminating a Power of Attorney that was granted by a donor when the donor had the necessary capacity to do so.
• Section 2(1) of the SDA establishes a presumption of capacity.
• The determination of capacity involves the assessment of two criteria:
  1. A person must be able to understand the information that is relevant to making a decision. This requires the cognitive ability to process, retain and understand the relevant information, and
  2. A person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the person to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
• The diagnosis by a doctor that a patient is experiencing the onset of dementia is not alone a basis for deeming an inference of incapacity. The evidence of the functional impact must be reviewed.
• Icolyn submits that Leonie has not led evidence to allow the Court to find that Leon lacked capacity at the time he signed the Power of Attorney and Wills in 2014. Mr. Saltzman confirms he had no concerns as to capacity or under influence at the time he met with Leon.
• Further, Icolyn submits that there is insufficient evidence to allow the Court to find that Leon lacked capacity when he transferred the Dartford Property into joint tenancy. Mr. Rickards confirms that he was of the opinion that Leon had capacity.

[45] Finally, Leonie has not led sufficient evidence to allow the Court to find that Leon lacked capacity when he sold the Skegby Property to Icolyn and David in 2017 and in fact on cross examination Leonie admitted that her father had signed a transfer to allow for the transfer of the Rexdale Property to her no earlier than late March of 2017, or mere months before the Skegby Property was transferred.

Analysis and Conclusion

Medical Condition of Leon

[46] I am not satisfied that the evidentiary record supports a finding that Leon did not have the capacity to execute the Power Attorney and Will in 2014.

[47] Leon began to seek medical advice for his memory issues in April 25, 2017. Leonie points to the following note from a physician dated April 25, 2017:

“… possible memory issues. Advised patient that he should discuss further with his family Dr. Is not agreeable to any testing at this time … wife has noted that (patient) can be forgetting things. Wife feels that this is affecting the relationship. (Patient) feels there is no trouble.”

[48] Leonie also refers the Court to the following comments written by the physicians:

• The documents provided by Icolyn indicate that Leon’s mental condition and memory issues became increasingly worse throughout 2018. Leon saw a physician no less than seven times during that year. Some of the comments written by the physicians at these visits include:
• February 15, 2018 – “…patient comes in with complaint of having patient brought in by the family member with complaint of having some possible worsening dementia issues. She has noticed that he is often time thinking about things that may not be true…”
• February 22, 2018 – “… the patient has been having some issues with dementia and is not willing to come in today because he does not feel this is the case. The fiancé has noticed that he is often times talking about things from before or things that may not be present.”
• April 11, 2018 – “…still having some occasional dementia issues”.
• April 18, 2018 – “brought in by the wife with follow-up regarding CT scan. She continues to feel that he is oftentimes confabulating or [miscommunicating] and he thinks that certain things are true when they are not.”
• September 27, 2018 – “patient brought in by wife. Patient has a history of dementia and recently he was noticed to have been lost. He was found after 2 days by the police officers. The patient states that he was looking for his family’s home and he did not know where he was going.”
• October 18, 2018 – “progressing dementia … the wife was offered medication however she would like to proceed with the geriatric specialist has to offer [sic]”.
• December 20, 2018 – “… dementia continues to be stable as per the wife”.
• A report written by Dr. Nnamdi Ugwuzel of the WellMedica Clinic, and dated May 19, 2018, states that Leon had been becoming increasingly forgetful over the previous six (6) months and that he had been attending at the bank regularly to “ask for money based on belief that paper with money on it signifies he is owed something”.

The Test for Capacity

[49] I agree with the position of Icolyn on this issue. The fact that Leonie noticed that Leon was having memory problems since about the year 2014 is insufficient to ground her position that at that time Leon did not have the capacity to execute his Will and the Power of Attorney.

[50] In Starson v. Swayze, 2003 SCC 32, the Court set out the following at paragraphs 15 to 17:

15 While the difference between ability to understand and appreciate and actual understanding or appreciation is easily stated, it may be less easy to apply in practice. Capacity is an abstract concept. The primary means of ascertaining capacity or ability, in any context, is to look at what an individual in fact says and does. It follows that it is not an error for the Board to inquire into the actual understanding or appreciation of the person in question. At the same time, the fact that the person’s actual conclusion does not agree with that of other people, for example medical experts, does not in itself demonstrate lack of understanding or capacity. In this connection, Professor Weisstub, supra, App. V, at pp. 421-22 states:

The test clearly refers to the ability of the patient, although there is a strong feeling that the distinction between actual understanding and the ability to understand one’s situation is merely a theoretical point. While it may generally be true that actual understanding is an appropriate guide of the ability to understand, the distinction could still be important, for example, for patients who would be able to understand their situation if sedated somewhat less, or, of course, for those who have not received complete information about their situation.

16 The first component of the test for capacity is that the person be “able to understand the information that is relevant to making a decision about the treatment” at issue. The person must be capable of intellectually processing the information as it applies to his or her treatment, including its potential benefits and drawbacks. Two types of information would seem to be relevant: first, information about the proposed treatment; and second, information as to how that treatment may affect the patient’s particular situation. Information relevant to the treatment decision includes the person’s symptoms and how the proposed treatment may affect those symptoms. The patient must be able to acknowledge his or her symptoms in order to be able to understand the information relevant to a treatment decision. Agreement with a medical professional’s diagnosis per se, or with the “label” used to characterize the set of symptoms, is not, however, required.

17 The second component of the test is that the person be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. The appreciation test has been characterized as more stringent than a mere understanding test, since it includes both a cognitive and an affective component: R. Macklin, “Some Problems in Gaining Informed Consent from Psychiatric Patients” (1982), 31 Emory L.J. 345. To be capable, a patient must be able not only to understand the relevant information, but also to “appreciate the reasonably foreseeable consequences of a decision or lack of decision”: s. 4(1) of the HCCA. “An understanding criterion focuses on a patient’s ability to acquire information, while appreciation focuses on the patient’s ability to evaluate information”: Berg et al., Informed Consent: Legal Theory and Clinical Practice (2nd ed. 2001), at p. 102. Appreciation seizes upon the ability of the person who is able to understand the facts (the first component) to weigh or judge and thus evaluate the foreseeable consequences of accepting or refusing treatment (the second component). Arbour J.A. (as she then was) described this distinction as follows in Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 (C.A.), at p. 314 (citing a Review Board’s comment): “there are situations where a person may understand in an intellectual sense the subject-matter in respect of which consent is requested and further understand the nature of the illness for which treatment is proposed and understand the treatment proposed, but his or her ability to appreciate the same as it relates to themselves may be impaired by the mental disorder”.

[51] In Johnson v. Huchkewich, 2010 ONSC 6002, the Court noted the following at paragraph 44:

[44] The clinical notes and records do support a conclusion that Ms. Kasiniak had begin to decline mentally and physically by the mid 1990’s. This can be no surprise: Ms. Kasiniak was then in her early 80’s. But the clinical notes and records do not establish that Ms. Kasiniak was “going downhill rapidly”. Rather, this is a medical opinion the applicant asks the court to accept on the basis of the clinical notes and records, and in the absence of any qualified medical expert to support that opinion. I will not do that. The fact that Ms. Kasiniak had some deficits by 1998 is not a basis for inferring incapacity. The fact that some of these deficits were mental is no basis to draw such an inference. The fact that she did well, or poorly, on general diagnostic tests is no basis for such an inference. The diagnosis of Dr. Varga, that Ms. Kasiniak was experiencing the onset of dementia and/or Alzheimer’s by December 1999, is not a basis for drawing such an inference. The task of interpreting these findings is properly for a medical expert or one of Ms. Kasiniak’s clinicians to do. Such an opinion could have assisted the court in understanding the functional impact of these descriptions and diagnoses. In the absence of an expert opinion, I rely upon Dr. Kalisiak’s observations and conclusions, and the dearth of evidence establishing any practical functional impairment of Ms. Kalisiak’s abilities that would bear on her testamentary capacity in April 1998.

In the case at bar, Leonie did not produce an expert opinion to establish that in 2014 Leon lacked the capacity to execute the documents.

[52] In Flynn v. Flynn, 2007 CarwellOnt 10220 (ON SC) the Court stated the following at paragraph 11:

[11] The applicants submit that Mrs. Flynn’s hallucinations, delusions and disorientation from time to time are sufficient to establish reasonable grounds that she is incapable. I disagree. On the evidence as a whole, I do not think the applicants have established reasonable grounds. Mrs. Flynn’s bonds of hallucinations and delusions do not by themselves establish a lack of capacity as defined in ss.6 and 45 of the SDA. So too with her disorientation. There must be some direct connection between the behaviour and the capacity leading to the conclusion that there is a capacity as it is defined. There is no such connection here. Accordingly, the applicants fail to mee the second requirement of s. 79(1) too.

[53] In Khan v. St. Thomas Psychiatric Hospital, 1992 CanLII 7464 (ON CA) the Court stated the following at pages 19 and 20:

This third appeal involves a decision of McGarry J. dismissing Ms. Khan’s appeal from an order of the review board which confirmed her incompetence to manage her estate. That issue was dealt with separately and by a different board than the board which confirmed her involuntary status and her incompetence to consent to treatment. Although the Act requires that a physician determine whether a patient is competent to manage his or her estate “forthwith upon the admission of the patient”, in this case no issue arose as to her competence until she received a letter from her brother, Amzal Khan, advising her that their mother had left her, by will, a house in Trinidad and some money. The appellant refused to believe that this could be the case and, based largely on her unwillingness to pursue the matter further, Dr. Komer concluded that she was incapable of managing her estate.

Here again, the appellant has the benefit of the common law presumption of competence. Part III of the Act, which deals with estates, does not elaborate on the test of competence applicable to that part of the Act. The amicus argues, in my view correctly, that the test of mental competence set out in s. 1(g) is not applicable to s. 36(1) (now s. 54(1)), which reads as follows:

54.(1) Forthwith upon the admission of a patient to a psychiatric facility, a physician shall examine the patient to determine whether or not her or she is competent to manage his or her estate.

Section 1(g) provides a definition of the term “mentally competent”, an expression which is used extensively in the Act, notable in ss. 35a [en. 1987, c. 37, s. 12], 29a(1) [en. 1986, 1992 CanLII 7464 (ON CA) c. 64, s. 33(25); rep. & sub. 1987, c. 37, s. 5(1)], 29(3) [am. 1986, c. 64, s. 33(20); am. 1987, c. 37, s. 4], 1 b(1), 1c(1) and 1d(1) [all three en. 1987, c. 37, s. 2] (now ss. 50, 36(1), 35(3), 3(1), 4(1) and 5(1)). In contrast, s. 36 (now s. 54) speaks of "competence" to manage, not of mental competence as statutorily defined. Even if s. 1(g) was not strictly applicable, some guidance may be taken from it in adapting the test of competence to make it pertinent to the handling of financial affairs. This was done by Professor David N. Weisstub, Enquiry on Mental Competency: Final Report (Toronto: The Enquiry, 1990), at p. 16, where he formulates a test of capacity to make a financial decision in the following terms:

36. Capacity to Make a Financial Decision -- In order to be considered mentally capable to make a financial decision, an individual must have the ability:

a) to understand the nature of the financial decision and the choices available to him or her;

b) to understand his or her relationship to the parties to and/or potential beneficiaries of the transaction or transactions which give rise to the decision; and

c) to appreciate the consequences of making the decision.

[54] Further the following evidence also supports the position of Icolyn:

1. E-mail from Jerry Saltzman to Priya Tewathia dated December 20, 2019 (Priya Tewathia was acting as solicitor for Leon and Icolyn, and had requested this from Mr. Saltzman):

I confirm that I prepared the attached Power of Attorney with the instructions of Mr. McDowell, that I had no reason to believe that he was incapable of granting such Power of Attorney at that time and that I and my secretary Chris Pinzarrone were the witnesses as to the execution of the document.

2. Affidavit of Peter Rickards – May 4, 2020:

2. I acted for Leon McDowell in relation to the purchase of his property located at 9 Dartford Road in Brampton Ontario in 2012.

3. In April 2015, Mr. McDowell called into my office to make an appointment to meet with me.

4. I met with Mr. McDowell and Icolyn Graham on April 6th, 2015 and at that time Mr. McDowell indicated to me that he wished to transfer title in the Dartford Property to both himself and Ms. Graham.

5. Mr. McDowell indicated that he wished ownership to be held by way of joint tenancy and not as tenants in common.

6. There was no indication at our meeting that Miss Graham was placing any pressure on Mr. McDowell to have the property transferred to her. In fact, Mr. McDowell provided me with all instructions in that regard.

7. There was also no indication at our meeting that Mr. McDowell lacked capacity to provide the instructions that he provided to me. I am satisfied that he in fact was competent at the time of providing me with instructions to transfer the property.

3. Affidavit of Jerry Saltzman sworn May 21, 2020:

3. In or about April of 2014, I made arrangements for a meeting with Mr. Leon McDowell for the purpose of preparing his Will and Power of Attorney.

4. On April 29, 2014, I met with Mr. McDowell at my office for 45 minutes for purpose of obtaining instructions from him.

5. Mr. McDowell indicated to me that he had been married for 42 years to Gloria McDowell, but that they had separated in 2011. He advised me that there were two children of their marriage.

6. Mr. McDowell further indicated to me that he had been living with Icolyn Graham for three years and that she was his common law spouse.

7. Mr. McDowell advised me that he wished Ms. Graham to act as the executor of his Estate and that if she was unable to so act, he wished his friend Conrad Blackwood to act in her place.

8. Mr. McDowell advised me that the Dartford property was to be provided to Ms. Graham unless she predeceased him in which case it was to be divided amongst her children.

9. Mr. McDowell advised me that the residue of his estate was to be divided amongst his grandchildren living at the date of his death.

10. After meeting with Mr. McDowell, I prepared the Will and Powers of Attorney in accordance with his instructions and I met with Mr. McDowell again on June 11, 2014 for the purpose of signing the documents.

11. At the time of my initial meeting with Mr. McDowell and during the course of our meeting to sign the documents, I had no reason to believe that Mr. McDowell was incapable of signing a Will or granting the Powers of Attorney.

12. Neither did I have any reason at that time to be concerned that Mr. McDowell was being unduly influenced by others in relation to the preparation of his estate documents.

13. On or about December 20, 2019, I was contacted by Priya Tewathia and asked to confirm that I was present on June 11, 2014 when the Powers of Attorney for Personal Care and Management of Property were signed and that I had no reason to believe that Mr. McDowell was incapable of giving the Power of Attorney for Personal Care and Property at that time. I confirmed same by e-mail dated December 20, 2019.

4. Affidavit of Priya Tewathia sworn May 13, 2020 (Lawyer):

2. On or about December 17, 2019, I received mortgage instructions from Indocan Investment Corporation seeking to place a first Mortgage on 9 Dartford Road in Brampton, Ontario.

3. The instructions provided that the Mortgage was to be given only by my client Icolyn Graham.

4. At no time did Ms. Graham advise me that she wished to take over control of Mr. McDowell’s property and instead the Dartford property was transferred into her name solely to complete the refinance transaction which was requested in order to allow Ms. Graham to consolidate her debt.

5. Affidavit of Pauline Brown, licenced Mortgage Broker, sworn May 21, 2020.

The evidentiary record before me does not establish that Leon did not have the capacity to execute his Will or grant a Power of Attorney.

Undue Influence

[55] Leonie submits that even if Leon had the capacity to execute his Will and grant a Power of Attorney to Icolyn, Icolyn exercised undue influence on Leon.

[56] Leonie submits that the time period from Icolyn’s arrival in Canada to gaining control of all of his assets was very short, she took advantage of Leon and the circumstances of all the transactions are suspicious.

[57] I am not satisfied on the evidentiary record before me that Icolyn exercised undue influence over Leon throughout the time period which all of these transactions took place.

[58] Icolyn points out that neither Mr. Saltzman nor Mr. Rickards were cross examined on their Affidavits. Both Mr. Saltzman and Mr. Rickards set out in their Affidavits that there was no influence exerted by Icolyn on Leon.

[59] In R. v. Quansah, 2015 ONCA 237, Watt J.A. set out the following at paragraph 79:

[79] Failure to cross-examine a witness at all or on a specific issue tends to support an inference that the opposing party accepts the witness’s evidence in its entirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later or, in a closing speech, to invite the jury to disbelieve it: R. v. Hart (1932), 23 Cr. App. R. 202 (Ct. Crim. App.), at pp. 206-207; R. v. Fenlon (1980), 71 Cr. App. R. 307 (C.A.), at pp. 313-314.

[60] Further, neither Pauline Brown nor Priya Tewathia were cross examined on their Affidavits.

[61] In determining whether undue influence exists, the Court considers the nature of the relationship and determines whether a potential exists for domination by one of the parties.

[62] In Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 SCR 353 the Court stated at page 378:

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

[63] Geffen also sets out that where the presumption is made out it may be rebutted by way of evidence such as the fact that the person had entered into the transaction of their own free will such as in cases where independent legal advice was provided to the person.

[64] In the case at bar the evidence falls short of establishing undue influence with respect to:

• The signing of the Will and Power of Attorney;
• The transfer of the Dartford Property into joint tenancy;
• The sale of the Skegby Property.

[65] This finding is supported by the evidence of Mr. Saltzman. In his Affidavit he confirms the following:

• He met only with Leon to obtain instructions;
• The instructions were received by him in late April 2014;
• The meeting to sign took place six weeks later, on June 11, 2014;
• He had no concerns with respect to capacity or undue influence at any time he dealt with Leon.

[66] The Affidavit of Mr. Rickards also points in the direction of a finding that there was no undue influence. Mr. Rickards confirms that with respect to the transfer of the Dartford Property, Leon made the appointment. Mr. Rickards explained to Leon the options available. Mr. Rickards had no concerns that Leon lacked capacity or was being influenced by Icolyn.

[67] With respect to the sale of the Skegby Property, Leon and Icolyn and David were each separately represented by lawyers at different law firms.

[68] It is important to note as well with respect to the Skegby Property transfer in 2017 that the Power of Attorney was not used in that transaction. I agree with Icolyn’s position, therefore, that as such she could not have breached her fiduciary duty in relation to the Power of Attorney.

[69] With respect to the Dartford Property, the funds received from the refinance and sale of Dartford were placed in a joint bank account belonging to Leon and Icolyn. A portion of the processed were used to purchase a new property, in which Leon holds an interest with equity of $500,000.00 at the time of purchase.

Termination of a Valid Power of Attorney

[70] Leonie asks this Court to terminate the Power of Attorney even if the Court finds that the Power of Attorney is valid. Two issues must be considered:

1. Whether there is strong and compelling evidence of misconduct or neglect on the part of the Attorney;
2. Whether the best interests of the incapable person are being served by the Attorney?

[71] In Crane v. Metzger, 2018 ONSC 5382, the Court set out the following at paragraph 8 and 20:

[8] In Teffer v. Schaefers (2008), 2008 CanLII 46929 (ON SC), 93 O.R. (3d) 447 (S.C.), Fragomeni J. said:

[21] In Glen v. Brennan, the court states, at para. 9:

The courts have generally taken the view that a written power of attorney executed by the donor at a time when he was apparently of sound mind (and there is nothing in the material to suggest otherwise) is simpler to deal with and gives the done more flexibility in dealing on behalf of the donor. Also favouring a continuation of the appointment respects the wishes of the person who made the grant. Chief Justice Hickman of the Newfoundland Supreme Court Trial Division in the case of Re Hammond Estate said:

There must be strong and compelling evidence of misconduct or neglect on the part of the done duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney.

[22] In Hammond (Re), the court states, at paras. 25, 31 and 33, as follows:

A preference expressed by a person in anticipation of becoming mentally incompetent is particularly important, and should be respected unless this would clearly not be in the person's best interests. The expression of such a preference might take the form of statements to friends and relatives, and arguably is implicit in the grant of a general power of attorney prior to becoming incompetent." [Citations omitted.]

[20] Mr. Cason also submits that the court may revoke a continuing power of attorney, but when considering whether to do so, the court must have strong and compelling evidence of misconduct or neglect, and should not ignore the clear wishes of the donor. The court must consider the best interests of the incapable person. Even in the face of some misconduct, the test for removal of a continuing power of attorney requires the court to find that the attorney is not acting in the donor’s best interests.

[72] In Teffer v. Schaefers, 2008 CanLII 46929 (ON SC), Fragomeni J. set out the following at paragraphs 24 and 25:

[24] The jurisprudence establishes that two issues require consideration. First, there must be strong and compelling evidence of misconduct or neglect on the part of the attorney before a court should ignore the clear wishes of the donor. With respect to this issue, the evidence has to establish that the donor was capable of granting a proper power of attorney.

[25] The second issue relates to whether the court is of the opinion that the best interest of an incapable person are being served by the attorney. Analysis Capacity of Johanna Schaefers to manage her property.

[73] Section 35.1(1) of the SDA states:

(1) A guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person’s will. 1996, c. 2, s. 22.

Section 35.1(3) of the SDA states:

(3) Despite subsection (1),

(a) the guardian may dispose of the property if the disposition of that property is necessary to comply with the guardian’s duties; or

(b) the guardian may make a gift of the property to the person who would be entitled to it under the will, if the gift is authorized by section 37. 1996, c. 2, s. 22.

Section 37(1) of the SDA states:

(1) A guardian of property shall make the following expenditures from the incapable person’s property:

1. The expenditures that are reasonably necessary for the person’s support, education and care.

2. The expenditures that are reasonably necessary for the support, education and care of the person’s dependants.

3. The expenditures that are necessary to satisfy the person’s other legal obligations. 1992, c. 30, s. 37 (1).

Leonie submits that transferring the Skegby Property and the Dartford Property out of Leon’s name was not reasonable and was subject to a specific testamentary gift in Leon’s Will. Icolyn, on the other hand, submits that the transfers comply with the provisions of sections 35.1 and 37(1) of the SDA. Icolyn submits further that the funds were deposited into a joint account held by her and Leon. When the property was sold, she deposited the net proceeds into the same account. Those funds were then substantially used to purchase the Barrie Property. The Barrie Property is held jointly by Icolyn, David, and Leon.

[74] I cannot conclude that Icolyn acted in such a manner in dealing with their properties, that she should be removed as Attorney. I am not satisfied that the evidentiary record supports a finding that Icolyn breached section 35.1 of the SDA. I am not satisfied that Leonie has provided strong and compelling evidence of misconduct or neglect on the part of the Attorney, or that the best interests of Leon require the removal of Icolyn as his Attorney.

Personal Care

[75] Section 66(1) of the SDA mandates that the power and duties of a guardian of the person shall be exercised and preformed diligently and in good faith. Section 66(3) of the SDA states:

(3) The guardian shall make decisions on the incapable person’s behalf to which the Health Care Consent Act, 1996 does not apply in accordance with the following principles:

1. If the guardian knows of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, the guardian shall make the decision in accordance with the wish or instruction.

2. The guardian shall use reasonable diligence in ascertaining whether there are such wishes or instructions.

3. A later wish or instruction expressed while capable prevails over an earlier wish or instruction.

4. If the guardian does not know of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, or if it is impossible to make the decision in accordance with the wish or instruction, the guardian shall make the decision in the incapable person’s best interests. 1992, c. 30, s. 66 (3); 1996, c. 2, s. 43 (2).

[76] Section 66(4) of the SDA sets out the factors the guardian shall consider:

(4) In deciding what the person’s best interests are for the purpose of subsection (3), the guardian shall take into consideration,

(a) the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;

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

(c) the following factors:

1. Whether the guardian’s decision is likely to,

i. improve the quality of the person’s life,

ii. prevent the quality of the person’s life from deteriorating, or

iii. reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.

2. Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision. 1996, c. 2, s. 43 (3).

[77] Section 66(6) of the SDA stipulates that the guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.

[78] Leonie submits that Icolyn has failed in her duties and points to the following events in support of that position:

• When Leonie’s brother attended at the hospital after Leon’s disappearance, Icolyn forced him to leave;
• When Leonie attempted to visit Leon after his disappearance at his home, Icolyn would not allow her to enter and advised that she had to stay outside on the porch.
• Various family members and friends of Leon’s have advised Leonie that they have been unable to see Leon; if they attended at Leon’s home, they would be told that he could not take visitors.
• In September of 2018, Leonie visited at Leon’s home. While there, Leon advised that he wanted to leave with Leonie and her daughter. Icolyn’s son then became verbally abusive towards Leonie’s daughter when she attempted to help Leon leave.
• Leonie gave Leon a cell phone so that she could communicate with him, but Icolyn confiscated the phone because she alleged that Leon had called the police to report abuse by her son.

The difficulties with Leonie’s position relate to the absence of an evidentiary basis to make these findings. Leonie’s brother did not file an Affidavit in support of Leonie’s allegations. Leonie does not identify the family members or friends who advised her of certain events, and they did not file Affidavits in support of her allegations.

[79] It is also important to point out that at no time had Leonie spoken to Icolyn. This is confirmed in Leonie cross examination, at questions 512, 513, and 517 as follow:

512. Q. Have you ever made any written requests of Ms. Graham for any type of documentation?

A. No, I did not.

513. Q. Have you ever made any verbal requests ---

A. No, I did not.

517. Q. I just have one final question for you Ms. McDowell. Did you ever have any conversation with my client, Ms. Graham?

A. No.

[80] Leonie submits that even without a finding of misconduct or neglect the Court has jurisdiction to order a change of Attorney if it is in the best interest of the incapable person to do so.

[81] Leonie submits that she is much more capable of taking care of her father providing not only the basic personal care but keeping him socially stimulated.

[82] Icolyn, on the other hand, submits that Leonie was not supportive of her father’s relationship with Icolyn. In support of that position, Icolyn references the following testimony given by Leonie on her cross examination:

74. Q. Well you were very clear in your affidavit that you wouldn’t – you hadn’t seen your father at his house since he moved out of the Hollowgrove property, correct?

A. That is true. I’ve never – I’ve been to – I think I’ve been to that property once after if my memory serves me well. I think it’s just one time I’ve been there. I’ve never been to the home once my father started shacking up with Icolyn Graham, no.

75. Q. That’s an interesting term. Why do you use that term “shacking up”?

A. Well, based on what I’m seeing, my father is still married to my mother. Ms. Graham was also married to somebody else. And yet somehow, they are common-law. So I – I – I don’t know how else you’d like me to term it.

76. Q. It sounds to me you’re upset about that.

A. I’m actually disappointed in my father more than anything.

77. Q. Why are you disappointed in your father if he’s happy?

A. I don’t know that my father is happy.

339. Q. Okay, but you’ve now had an opportunity to review certain actions of your father, and let’s go over them. So he named her as his power of attorney for personal care and management of property. You’ve seen that now, correct?

A. Yes, I have.

340. Q. He didn’t name either of children or his wife, correct?

A. Correct.

341. Q. He didn’t name either his children or his wife as his alternate attorney. Sorry, you’ve muted yourself.

A. I’m sorry, I’m sorry. There’s someone that was in the room, I was just trying to give them direction. My apologies.

342. Q. That’s fine. I’ll ask the question again. So he didn’t name either his children or his wife as his alterative attorney, correct?

A. That is correct.

343. Q. He named Mr. Blackwood, correct?

A. That was the – that’s correct as well.

334. Q. Your saw that on his life insurance policies as early as 2013, he changed his beneficiary ---

A. I saw –

345. Q. --- to become Ms. Graham, correct?

A. --- all that, yes.

346. Q. Okay. Ad you saw that in 2015 he transferred the Dartford property from his own name to his name together with Ms. Graham’s, as joint tenants.

A. I saw that.

347. Q. Okay. So from reviewing those documents does that not help you to see that he had obviously a strong relationship with Ms. Graham?

A. No, I don’t see that. What I see is an elderly man who made some poor decisions, and this is why we’re at this point.

348. Q. So he made a poor decision when he moved out of the house?

A. He made a poor decision the moment he decided to dishonour his wife and engage in an illicit affair with someone other than his wife.

[83] Icolyn submits that the evidence establishes that she has been pro-active in seeking medical and other care for Leon. In her Affidavit sworn March 3, 2020, Icolyn sets out the following at paragraph 43, 44, 45, and 47:

43. By mid 2019, it was becoming apparent that I could not longer care for Leon at home even with the programming that he was attending, and I therefore, sought out a care facility for him.

44. In July of 2019, Leon was moved into the Village of Sandalwood Park, where he relies on team members for care.

45. I visit Leon as often as I can, usually spending weekends with him. I bring him food, spend time with him, assist him with hygiene and showering and attend to other tasks for him as required.

46. I have provided Leon with the benefit of the drug plan provided by my employer, but we are still required to pay some amounts towards his medication on monthly basis since his medication is not fully covered by the plan.

[84] In her Supplementary Affidavit sworn May 22, 2020, Icolyn states the following at paragraphs 70 to 74:

70. Contrary to the Applicant’s allegations Leon is being well cared for the Village of Sandalwood Park. As mentioned in my earlier Affidavit I visit with Leon quite often and bring him home cooked food which is stored for him to eat throughout the week, and I assist him with his hygiene and laundry.

71. Leon does not have a television set because the television was acting to confuse him. Leon is in a shared room because that room allows him to receive government benefits of close to $600.00 per month. If he was to be moved to a private room, he would lose the benefit. The cost of private room at the same facility is $2,701.61, or $1,323.88 per month more than we are currently paying.

72. Contrary to the allegations made by the Applicant, Leon has plenty of clothes and I do laundry on a weekly basis to ensure that he always has clean clothes available to him. I also bring him clothes as required.

73. With respect to paragraph 44 of the Applicant’s affidavit, I can advise that I was not made aware of the Christmas plans made for Leon by the Applicant. I also had plans for Leon and I went ahead with those plans. Had there been discussion or contact in advance, we could have co-ordinated our plans so that Applicant would not been disappointed.

74. With respect to the Applicant’s allegation that I am not making care decisions in her father’s best interest, I deny the allegation, and note that there is no evidence whatsoever that Leon is not being properly cared for.

[85] I agree with the position of Icolyn on this issue. On the evidentiary record before me there is insufficient evidence to remove Icolyn as Attorney for personal care. I am troubled by the absence of evidence from anyone at the nursing home to establish or confirm the allegations made by Leonie with respect to her father’s circumstances at the home.

Conclusion

[86] The Application is hereby dismissed. An Order shall also issue lifting the Certificate of Pending Litigation registered against the Barrie Property.

[87] The Respondents shall serve and file their written submissions on costs within 20 days. The Applicant shall serve and file her responding written submissions on costs within 20 days thereafter. The Respondents shall serve and file any Reply cost submissions within 10 days thereafter.

Fragomeni J.

Released: May 18, 2021

DATE: 2021 05 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Leonie McDowell

Applicant

-- and –

Leon Patrick McDowell, Icolyn Graham, David Graham, and The Public Guardian and Trustee

Respondents

REASONS FOR JUDGMENT

Fragomeni J.

Released: May 18, 2021