COURT FILE NO.: 17-74763 & 18-76346

DATE: 20210513

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christina Rudin-Brown and Jeanne Brown

Applicants

AND

Carolyn Emily Brown, Gordon Russell Brown and Public Guardian Trustee

Respondents

AND BETWEEN:

Gordon Russell Brown

Applicant

AND

Carolyn Emily Brown, Christina Rudin-Brown and Jeanne Brown and Public Guardian Trustee

Respondents

Ian B. McBride and Natalie Scott, Counsel for Christina Rudin-Brown and Jeanne Brown

Rodrigue Escayola, Counsel appointed under s. 3 of the Substitute Decisions Act for Carolyn Emily Brown; Joseph W. L. Griffiths, Counsel for Gordon Russell Brown

Joseph W. L. Griffiths, Counsel for Gordon Russell Brown

Rodrigue Escayola, Counsel appointed under s. 3 of the Substitute Decisions Act for Carolyn Emily Brown; Ian B. McBride and Natalie Scott, Counsel for Christina Rudin-Brown and Jeanne Brown

HEARD: September 28, 29, 30, 2020 and October 1, 5, 6, 8, 9, 13 and 15, 2020 by Zoom videoconference

The text of the original Reasons for Judgment dated May 5, 2021 was corrected on May 13, 2021 and the description of the correction is appended

amended REASONS FOR JUDGMENT

Justice H. J. Williams

Overview

[1] Carolyn Brown is 91 years old. Carolyn[^1] lives in the Ottawa house where she has resided for almost 60 years. Her son Gordon Brown, who is in his late 50s, lives with her and cares for her.

[2] Christina (“Missy”) Rudin-Brown[^2] is Carolyn’s daughter. Jeanne Brown is Carolyn’s sister-in-law.

[3] Around 2008, Missy noticed that Carolyn was having some problems with memory and confusion. This became more obvious in 2012. Other family members expressed their concerns about Carolyn’s memory to Missy in the spring of 2014 and questioned whether Carolyn should continue to live in her house. Gordon maintains that other than occasional memory lapses and confusion, which he attributed to bladder infections, Carolyn was fine until June 2017, when her memory declined suddenly and noticeably.

[4] Significantly, on September 9, 2016, Carolyn signed powers of attorney in which she named Gordon as her attorney for property and for personal care. The 2016 power of attorney for property replaced a power of attorney for property Carolyn had signed in 2009, which named Jeanne as her attorney and Jeanne’s son Carter Brown as substitute attorney. The 2016 power of attorney for personal care replaced a 2009 power of attorney which named Missy and Gordon as attorneys, jointly and severally.

[5] Carolyn also signed a new will in September 2016. The new will named Gordon as Carolyn’s executor and as the beneficiary of the residue of her estate. The 2016 will replaced a 2009 will which named Jeanne as executor and Carter as alternative executor and which divided the residue of Carolyn’s estate equally among Gordon, Missy and Zachary Brown, the son of Carolyn’s late daughter, Sandra. The 2009 will had given Gordon the right to continue to live in Carolyn’s house for one year following Carolyn’s death and then the right of first refusal to purchase the house from Carolyn’s estate at fair market value.

[6] There are two competing applications before the court under ss. 22 and 55 of the Substitute Decisions Act, 1992, S.O. 1992, s. 30 for guardianship of Carolyn. One application was brought by Missy and Jeanne, the other by Gordon.

[7] Kershman J. case managed the applications. On May 1, 2018 Kershman J. declared Carolyn incapable of managing her property and her personal care. During the course of his case management, Kershman J. consolidated the applications and ordered a trial.

[8] Missy and Jeanne argue that Carolyn did not have the mental capacity to execute the 2016 powers of attorney. In their application, Missy and Jeanne request declarations that the powers of attorney null and void or an order removing Gordon as Carolyn’s attorney for property and attorney for personal care. Missy and Jeanne request an order appointing them as guardians of property and of the person for Carolyn. They seek approval of the management and guardianship plans they filed.

[9] In his application, Gordon seeks a declaration that the 2016 powers of attorney for property and personal care are valid. Alternatively, he seeks orders appointing him as Carolyn’s guardian of property and of the person and approval of his management and guardianship plans.

[10] Although the circumstances surrounding the creation of the September 2016 will are part of the narrative and relevant to the issues before the court, the validity of the will is not one of the issues to be decided.

The Issues

[11] The issues are the following:

1. Are numerous recordings of Carolyn’s conversations made by Gordon admissible and, if so, how may they be used as evidence?

2. Are the 2016 powers of attorney valid?

3. If the 2016 powers of attorney are valid, should Gordon be removed as Carolyn’s attorney for property and personal care?

4. If the powers of attorney are not valid, should the attorneys named in Carolyn’s 2009 powers of attorney be appointed as her guardians for property and of the person? Or should Missy and Jeanne or Gordon be appointed as her guardians?

Issue # 1: Are the recordings of Carolyn’s conversations admissible?

[12] Gordon asked to introduce into evidence 15 recordings he had made of Carolyn’s telephone conversations in 2017.[^3] Most were recordings of conversations between Carolyn and Missy. The earliest of the conversations took place on January 16, 2017; the latest conversation was on June 27, 2017.

[13] Missy and Jeanne tendered one of Gordon’s recordings and an excerpt from another.[^4] These were recordings of Carolyn’s and Gordon’s discussion and comments as they reviewed Missy and Jeanne’s application record in December 2017, shortly after it was served.

[14] Gordon’s lawyer asked to put the recordings of the telephone conversations to Missy in cross-examination. As Missy was the first witness to testify, Gordon had not yet given evidence about the origin of the recordings. I ruled the recordings could be used for the cross-examinations and invited argument at the end of the trial about their admissibility and weight.

The origin of the recordings

[15] Gordon testified that a July 4, 2016 conversation he had with Missy, to which I will refer in detail later, prompted him to start recording Carolyn’s telephone calls. Gordon said that after that conversation, in which Missy had talked about Carolyn moving into a retirement home and Carolyn’s house being sold, Missy continued to threaten him and Carolyn. Gordon said he thought he should get some evidence he could take to the police, if necessary.

[16] Gordon said that years earlier, he had recorded telephone calls relating to a dispute he had with the patent office. He said he dusted off the device he had used at that time and attached it to Carolyn’s telephone. He said it recorded all of Carolyn’s calls. He said the device was vulnerable to power outages and that, as a result, he missed some of Missy’s “best hits”, referring, he said, to conversations in which Missy was really angry with Carolyn and him.

[17] Gordon said that although he began recording Carolyn’s telephone calls in September 2016, with a few exceptions, he did not listen to any of the recordings until 2018. Gordon said he later started to record Carolyn’s in-person conversations. He said he used a different device. At one time, Missy located a recording device in Carolyn’s purse.

[18] Gordon said that in order to use the tapes for this litigation, he reviewed them and organized them by topic and then in chronological order within each topic. He edited out irrelevant conversations and reduced about 40 hours of recording to about 30 hours.

[19] Gordon said Carolyn knew and fully approved of his recordings; he said he told her he had a tape recorder and that she had said, “yeah, go for it”. I will explain below that I do not accept that Carolyn gave an informed consent to being recorded. Gordon admitted that Missy had not consented to being recorded. He said that he could not say whether anyone else Carolyn spoke to on the telephone knew they were being recorded.

The parties’ positions with respect to the recordings

Gordon’s position

[20] Gordon seeks to admit the recordings for several reasons. He argues that the recorded conversations between Carolyn and Missy demonstrate that Carolyn reacted badly when anyone threatened her autonomy; that it was Missy, and not Gordon, who was attempting to manipulate or influence Carolyn; that Carolyn was resisting Missy’s efforts to become more involved in Carolyn’s financial affairs; that Missy had not been truthful when she had said in an affidavit that Gordon had isolated Carolyn from other family members in that Carolyn and Missy spoke on the telephone regularly; that although Missy argues that Carolyn did not have capacity to change her powers of attorney in September 2016, Missy was urging Carolyn in 2017 to make a further change to include Missy as an attorney; and that Missy was self-interested, in that she is heard urging Carolyn to make her usual annual contributions to Missy’s children’s RESPs and telling Carolyn that she should not forget about Missy’s children in her will.

[21] Gordon argues that the recordings are necessary, because, without them, Carolyn will not have a voice at the trial. Gordon also argues that the recordings are reliable. He explained how he made the recordings and how he edited and organized them. He acknowledged he did not produce all the recordings he made; he produced only those he believed to be relevant. He argues that the tapes were produced before trial and if Missy and Jeanne had any concerns about whether they were edited in a manner that distorted their meaning, they had had ample time before the trial to have them examined.

Missy’s and Jeanne’s position

[22] Missy admitted that her voice and her words are heard on the recordings and that the recordings appeared to be of conversations she had with her mother.

[23] Missy and Jeanne’s primary objection to the recordings was that Gordon had cherry-picked from all of the conversations he had recorded and was seeking to admit only those he believed supported his position or cast Missy in a bad light. Missy had testified that hat she believed Gordon was present with Carolyn during some of her telephone calls and that his presence may have affected what Carolyn said. Missy and Jeanne also argued that the recordings had little probative value because they were made long after Carolyn changed her powers of attorney in September 2016.

[24] Missy and Jeanne also argued that the recordings violated Carolyn’s privacy. They did not accept that Carolyn had consented to being record and argued that the court should discourage surreptitious recordings.

[25] Missy and Jeanne did not argue strenuously that the recordings of the telephone conversations should not be admitted into evidence but submitted that they should be given little weight.

[26] As I have already noted, Missy and Jeanne themselves sought to admit two of Gordon’s recordings, although they were recordings of in-person conversations between Carolyn and Gordon and not recordings of telephone conversations.

Analysis

[27] For the reasons below, I have, with some reluctance, concluded that the recordings are admissible. I will place little weight on Carolyn’s side of the conversations.

[28] Turning first to the recorded telephone conversations, section 184 of Canada’s Criminal Code, R.S.C. 1985, c. C-46 prohibits the interception of private telephone conversations without the consent of the person who initiated the conversation, or the person who was intended to receive it. However, if the recordings of Carolyn’s and Missy’s conversations were obtained surreptitiously or illegally, this does not translate into inadmissibility. Although there are exceptions, the manner in which evidence is obtained, no matter how improper or illegal, is not an impediment to its admission at common law.[^5] This general inclusionary rule applies equally to criminal and civil cases.[^6] The court nonetheless maintains a general exclusionary discretion to exclude otherwise admissible evidence if the prejudicial effect outweighs the probative value. Evidence may be excluded under this cost-benefit analysis if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time to present the evidence that is not commensurate with its value, or if it is misleading in that its effect on the trier of fact is out of proportion to its reliability as probative material. (R. v. Cyr, 2012 ONCA 919, at para. 96-97, citing R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.)

[29] I do not accept Gordon’s evidence that Carolyn knew he was recording her telephone conversations and had readily authorized him to do so. Gordon recorded all of Carolyn’s conversations, including conversations with her health care providers, financial advisors, other family members and friends. This meant that Carolyn could not have a private telephone conversation while in her own home. During a conversation with Missy, Carolyn said she did not want to speak about something with “you know who around”, obviously referring to Gordon. If Carolyn had known her calls were being recorded, Gordon being around would have been irrelevant, because she would have known that Gordon could listen to all of her calls whether he was around or not. I find that Carolyn did not agree to have her conversations recorded, or, if she did, she did not appreciate what she was agreeing to.

[30] Surreptitious audio and video recordings should be strongly discouraged by the courts. This is a regular refrain in family law cases. (See, e.g. Fiorito v. Wiggins, 2015 ONCA 729 at para. 22.) Although the case before me does not involve family law, it is a case involving a family, and many of the reasons for discouraging secret recordings in family law cases apply equally here, including the distrust they foster and their toxic effect on future relationships.

[31] That said, if I were to exclude the recordings and the evidence that flowed from them, I would be left to decide the case based on a record I know to be incomplete.

[32] Turning first to the recordings of Missy’s side of the recorded conversations, Gordon does not seek to introduce them for their truth so much as for the fact that Missy said what she said. Missy was given ample opportunity at trial to comment on the recordings and to give evidence about other conversations she had with Carolyn that were not recorded. I am satisfied that although the recordings were not made at the time Carolyn signed the powers of attorney they have probative value, in that they show that Missy and Carolyn were communicating frequently in the first half of 2017 and that Missy was concerned about Carolyn, about Gordon having control over Carolyn’s finances and about Carolyn having changed her powers of attorney and possibly also her will. I am satisfied that the recordings of Missy’s side of the conversation are more probative than prejudicial.

[33] Carolyn’s side of the conversations is different. As was the case with Missy’s side of the conversation, Gordon seeks to introduce the conversations not so much for their truth as for what was said. I set out, above, the reasons Gordon is seeking to introduce the conversations, for example, to show that Carolyn reacted badly when anyone threatened her autonomy and that Carolyn resisted Missy’s efforts to become more involved in Carolyn’s financial affairs.

[34] Although Carolyn was not cross-examined, at trial, Missy was able to identify her mother’s voice and to confirm that the conversations took place.

[35] My concern about the recordings of Carolyn’s side of the conversation relates to prejudice and whether they may be misleading. Gordon did not produce all of the conversations he recorded, only those he considered relevant. Missy said the recordings that were produced did not include all the telephone conversations she had had with her mother. The court heard what Gordon thought it needed to hear; it did not hear everything. For this reason, I do not accept Gordon’s counsel’s argument that the recordings must be admitted so that Carolyn will have a voice at the trial. Carolyn’s voice was only heard to the extent that it was filtered through Gordon. Further, I cannot be satisfied that Gordon was not present when Carolyn was speaking with Missy and that his presence did not influence Carolyn’s words. Carolyn was unable to testify at the trial and could not, therefore, fill in any of the gaps. I am concerned about the extent to which Carolyn’s side of the conversations is truly representative of Carolyn’s views and state of mind. As Missy confirmed that the conversations took place, I will not exclude Carolyn’s side of the conversations from evidence but I will assign them little weight.

[36] I will turn now to the recordings Missy and Jeanne have tendered of Gordon and Carolyn discussing Missy and Jeanne’s application record in December 2017. Obviously, Gordon was aware he was being recorded. Gordon was also cross-examined about the discussions. During the longer of these two recordings (Exhibit Q), Gordon is heard explaining Missy and Jeanne’s application record to Carolyn and Carolyn is heard reacting in astonishment and, at times, anger. There was no evidence that Carolyn was aware that she was being recorded. Carolyn could not be cross-examined on the discussions. I also note that the recordings were made several months after two capacity assessors had declared Carolyn incapable of managing property and personal care. I am, however, satisfied that the recordings were of conversations between Gordon and Carolyn in the context described by Gordon. These recordings are highly probative and will be admitted.

Issue #2: Are the September 2016 powers of attorney valid?

[37] To decide this issue, and the issues that flow from it, I have considered all of the affidavits and documents in the parties’ joint book of documents, other than five affidavits and two documents the parties informed me I was not to review. I have also considered all of the exhibits, including the recordings to which I have just referred. I have also considered the oral testimony of all of the witnesses: Missy, Jeanne, Gordon, Carolyn’s brother David Mossman, Carolyn’s sister-in-law Carolyn Mossman, Carolyn’s friends Nanette Whitwam and Shirley Monsebraaten and expert witnesses Dr. Kenneth Shulman and Dr. Francine Sarazin.

[38] A consideration of the validity of the powers of attorney requires a factual foundation, with some emphasis on the Brown family’s background and dynamics.

A summary of the facts

[39] Carolyn was born in 1930. Carolyn earned a Ph.D. in chemistry and worked at the National Research Council in Ottawa until she retired when she was 65. Carolyn’s husband, Bill, died in 1994.

[40] Carolyn had three children, Gordon, Sandra and Missy. Sandra died of cancer in July, 2009. Sandra had a son named Zachary.

[41] Missy is married with three daughters. She has a Ph.D. in experimental psychology and is a manager in the federal public service.

[42] Gordon has lived with Carolyn since the early 2000s. Gordon had previously worked in contract positions for the federal government for many years and then worked in technical support for two companies. Around 2008, Gordon stopped working in technical support to devote his time to writing books, which he plans eventually to market on-line. Carolyn has been supporting Gordon financially since 2008 or 2009. Gordon says he has finished one book and is close to finishing two others but that this litigation has slowed his progress.

[43] Missy and her family spent three years in Australia between 2009 and 2012 on an exchange program.

[44] When Missy and her family returned from Australia in 2012, they moved in with Carolyn for four days while they were waiting for their house to be ready. Missy noticed that Carolyn was having problems with her memory. Carolyn would lose things and comment that she felt that she was losing her mind. Missy had noticed some signs of these problems as early as 2008, before she left for Australia, but had paid little attention to them at that time.

[45] In September 2013, there was a kitchen fire in Carolyn’s house. Carolyn had turned on the stove, and then she and Gordon went out for a drive. Gordon had said at the time he believed that Carolyn had started the fire on purpose, so that the house would burn down and she could collect the insurance money and get rid of him.

[46] In the spring of 2014, Carolyn’s sister-in-law, Carolyn Mossman, wrote two emails to Missy, expressing concern about Carolyn’s memory and about whether it was in Carolyn’s best interests to continue to live in her home with Gordon. Ms. Mossman said that her concern was shared by her husband, Carolyn’s brother, George.

[47] Missy described several incidents in 2015 which caused her to have concerns about Carolyn’s memory and cognitive abilities. Carolyn had refused to pick up one of Missy’s daughters at school after the school had called to say the child was injured; Carolyn said she was afraid she would not be able to find her way to the school. Missy also noticed that Carolyn was continuing to lose things. Missy described how Carolyn had had difficulty figuring out how to turn on a tap in a bathroom. Missy said that on a trip to Wasaga Beach, they had played mini-golf and Carolyn said that she had never played before, even though she had, and then held the golf club like a croquet mallet, despite being shown, on each hole, how to hold the club properly. In early December, 2015, when Carolyn and Missy drove seven or eight hours to attend a family funeral, Missy noticed that Carolyn had been unable to use the dispenser at the gas station. Missy referred to an episode of incontinence, which surprised her, and she began to worry that Carolyn was not taking the medications she had been prescribed.

[48] In April 2016, Missy arranged for Carolyn to see their family doctor, Dr. Salamon, concerned that Carolyn’s memory issue may be due to something more than just aging. Missy attended the appointment with Carolyn. Missy said that Dr. Salamon administered a test and that Carolyn did quite well, except for her short-term memory, which Missy described as “completely absent”.

[49] Dr. Salamon recommended an MRI to rule out a brain tumor. Missy said she accompanied Carolyn to the MRI appointment in June 2016 and that Carolyn was grateful for her assistance.

[50] A post-dinner conversation on July 4, 2016 between Missy and Gordon was a pivotal event. Missy’s and Gordon’s accounts of the conversation differ somewhat, but they agree it dealt with Carolyn moving into a retirement home and her house being sold. Gordon says Missy was drunk and that she told Gordon that he should be kicked onto the street, the house should be sold, and Carolyn should be put in a home. Missy denies being drunk. She says she was concerned both about Carolyn’s care and about Gordon, who, by that time, had been living with his mother for an extended period of time and who, she said, had no friends. Missy says she told Gordon he treated Carolyn like a slave. She says she told Gordon that if Carolyn’s doctor said it would be best for Carolyn, Carolyn should move into a home and, if necessary, Carolyn’s house should be sold to pay for her living expenses.

[51] Gordon described the July 4, 2016 conversation as a threat to his and Carolyn’s existence and as an existential threat to their on-going security.

[52] Regardless of what Missy said to Gordon on July 4, 2016, or how Gordon interpreted it, I am satisfied that it was not Missy’s intention to force Carolyn out of her home against her will. As Missy and Gordon were Carolyn’s co-attorneys for personal care and Jeanne was Carolyn’s attorney for property, Missy would not have had the ability to force Carolyn out of her home, without the intervention of a court.

[53] The results of the June MRI came back in August 2016. Dr. Salamon said the MRI showed changes to Carolyn’s brain which may or may not have been attributable to aging. Dr. Salamon recommended that Carolyn undergo a geriatric assessment.

[54] Gordon was unhappy when he found out a geriatric assessment had been recommended. Missy said Gordon accused Missy of trying to put Carolyn away. Missy said she did not understand Gordon’s reaction at the time.

[55] In late August or early September, Gordon took Carolyn to the Ottawa law firm which had prepared her 1996 and 2009 wills and powers of attorney. The McGuinty Law Offices opened a file for Carolyn on August 31, 2016. “Wills and Power of Attorney” was the matter description on the file. Gordon said an employee attempted to meet with Carolyn privately, but that Carolyn stormed out of the meeting shortly afterward, and said she didn’t want to stay. Gordon said the employee had taken Carolyn by the elbow and he thought this had offended Carolyn.

[56] On September 3, 2016, Missy had a telephone conversation with Carolyn in which Carolyn told Missy she was upset with both Missy and Dr. Salamon. Carolyn told Missy that, consequently, she did not want to get together with Missy for dinner anytime soon. Carolyn also told Missy she had been to see a lawyer to have her will changed. Missy apologized and told Carolyn that Dr. Salamon had recommended the geriatric assessment, that Missy had not requested the assessment and that it was up to Carolyn to decide whether she wanted to have the assessment.

[57] The following day, September 4, 2016, Carolyn left a message on Missy’s voicemail, saying that she was sorry about their previous conversation but that “Gord gets funny when he thinks he isn’t going to get the house.”.

[58] Missy said she tried to reach Carolyn by telephone for the next several days, but Carolyn did not return her calls.

[59] In the first week of September, Gordon and Carolyn went to see lawyer Ron McCloskey. Mr. McCloskey did not open a file for Carolyn. Gordon said Mr. McCloskey had confused Carolyn with some of his questions. Missy says she later spoke to Mr. McCloskey and that he told her he had refused to take Carolyn on as a client because she was either “out of it” or “too out of it”. Gordon denied that Mr. McCloskey had refused to accept Carolyn’s retainer but admitted on cross-examination that Carolyn had been a bit out of it that day.

[60] Missy called Carolyn on September 7, 2016, Gordon picked up the phone and told Missy that Carolyn was angry with her and did not want to speak with her.

[61] On September 9, 2016, Carolyn executed new powers of attorney in which she named Gordon as her only attorney for property and for personal care. Carolyn also executed a new will, in which she named Gordon as her executor and the only beneficiary of the residue of her estate. The will named Carolyn’s brother, David Mossman, as alternative executor. Mr. Mossman had received an email from Carolyn’s email account, which he believed had come from Gordon, asking him to act as alternative executor. In an email dated September 8, 2016, Mr. Mossman had refused. I will refer to the powers of attorney, the will and the events of September 9, 2016 in greater detail, below.

[62] Around this time, Carolyn took steps to formally end her relationship with Dr. Salamon, although she later received further treatment from Dr. Salamon. Gordon was very critical of Dr. Salamon. Gordon found another family doctor for Carolyn, Dr. Harjeet Singh.

[63] On October 5, 2016, a geriatric assessor sent a fax to Dr. Salamon, advising that Carolyn had declined a geriatric assessment because she had no concerns about her health or how she was doing.

[64] Jeanne’s husband, Bud, who was Carolyn’s late husband’s brother, died in December, 2016. Missy said Carolyn was confused at the funeral and, on several occasions, asked where Bud was.

[65] Missy and Carolyn spoke on the telephone regularly in early 2017. It is evident from the recordings of these conversations that Missy was concerned about Carolyn’s finances and the degree to which Gordon had control over them. Missy wanted to ensure that Carolyn was going to make her usual annual contributions to Missy’s daughters’ RESPs. Missy told Carolyn that she felt that she should be involved in overseeing Carolyn’s finances, along with Gordon. During one conversation, Missy reminded Carolyn that she had previously said that Gordon acts strange when he thinks he isn’t getting the house. Carolyn then told Missy that she, Missy, did not need the house. Missy agreed but, in a subsequent call, told Carolyn that although she did not need the house, she did not have a lot of money and that she also had three daughters to provide for. Missy also told Carolyn that she wanted to make sure that Carolyn’s finances were going to be treated the same way Carolyn and her husband Bill had treated them. Missy also told Carolyn that she knew that Carolyn would not want Gordon to have full control over her finances.

[66] On June 1, 2017, Missy sent Gordon an email, with a copy to Carolyn, suggesting they discuss a joint power of attorney arrangement. In her email, Missy said that she appreciated that Gordon would need to have the ability to make expenditures regarding Carolyn’s house and its upkeep. Missy told Gordon that she had suggested such an arrangement with Carolyn and that Carolyn seemed to be supportive. Gordon did not reply. Missy’s husband, Peter, followed up with Gordon and received an email from Gordon saying that Carolyn had already decided that she wanted Gordon to have control of her health, and that they had seen lawyers the previous year and filled out the relevant papers.

[67] In late June, Missy made an appointment to meet with one of Carolyn’s advisors, with Carolyn, at RBC Wealth Management/Dominion Securities. The night before, Missy called Carolyn to remind her about the appointment the next day. The day of the appointment, June 26, 2017, the RBC advisor telephoned Missy half an hour before the appointment to tell her that Gordon had cancelled the appointment.

[68] That same day, June 26, 2017, Gordon took Carolyn to the Emergency Department of the Ottawa Hospital. A Geriatric Emergency Management Assessment dated June 26, 2017 states that Gordon reported that Carolyn was having memory problems and that Gordon “is concerned that his sister is trying to become POA. He believes she will manipulate Mrs. Brown into signing papers and then try to sell her house, which he lives in with his mother. Gordon came in hopes she would be declared incompetent and that he could take over as POA. He admitted he brought her to the Royal Ottawa to have a psychiatrist assess her but he was denied.”.

[69] The assessment stated that Carolyn was assessed with Gordon present, that she answered most questions appropriately with minimal word finding but demonstrated some forgetfulness and struggled with “Mini-cog.” It also said: “Gordon often interrupted the conversation or talked over his mother. He brought up her confusion repetitively in front of her.” The assessment identified both memory and caregiver issues as geriatric concerns for Carolyn. Carolyn was referred to the Elisabeth Bruyere Hospital in Ottawa for neuropsychological assessment.

[70] In a report dated September 18, 2017, the Elisabeth Bruyere assessor, Laurie Morrison, concluded that many of Carolyn’s higher mental functions remained intact with impairment in certain domains. The most prominent deficits were in her short term memory. The assessor concluded that Carolyn could continue to drive and that there was little basis to question her capacity to make personal care decisions, despite her memory impairment. A kitchen safety assessment recommended that Carolyn not use two burners at a time.

[71] In an Elisabeth Bruyere discharge summary, Dr. Anne Monahan concluded that Carolyn remained high functioning, but with diminished short-term memory, which appeared to be having a functional impact. Dr. Monahan said the findings were strongly suggestive of “an Alzheimer disease picture”.

[72] In late June 2017, Gordon retained capacity assessor Leonard Burnstein, MSW, to conduct an assessment of Carolyn’s capacity to manage property. Gordon told Mr. Burnstein that Missy had been trying to financially exploit or abuse Carolyn. On July 22, 2017, Mr. Burnstein found Carolyn to be incapable of managing property and of managing personal care regarding health care and shelter.

[73] On August 2, 2017, Dr. Francine Sarazin assessed Carolyn at Missy’s request. Dr. Sarazin also found Carolyn incapable of managing property and of making decisions regarding personal care.

Gordon and the house

[74] Gordon said that on his birthday in 2008, Carolyn told him she had given Missy and Sandra $100,000.00 to buy their houses and that she had told the sisters not to tell Gordon. Carolyn told Gordon she had not felt that he was ready to buy a house.

[75] Gordon was extremely upset by this disclosure and that he had not been told earlier. He said that he and Carolyn had a huge fight. Carolyn called the police but asked that no charges be laid.

[76] Gordon said he then told his mother that instead of giving him money, he wanted her to support him while he took up a career as a writer. He said he told his mother he would need 10 years, and that Carolyn had agreed.

[77] Gordon did not pay rent to Carolyn and Carolyn paid all of the household expenses. Around 2009, Carolyn also began to pay Gordon $1,500.00/month, which she later increased to $2,000.00/month, at Gordon’s request. Gordon said he had credit card debt of $20,000.00 to $30,000.00 he had asked Carolyn to pay. He said she refused to pay the entire amount owing but agreed to pay the minimum monthly amount, which was about $1,500.00. Gordon said that this was Carolyn’s way of controlling him. Asked why, if he felt controlled, he did not simply get a job, he said it was because he did not want a job, he wanted a career, like his sisters had.

[78] Gordon said he first saw Carolyn’s 2009 will in September of 2016. Before September 2016, he had expected to receive Carolyn’s house when she died. When Gordon saw the will, he realized that it provided that he could continue to live in the house for one year after Carolyn died but that he would then be required to buy the house from the estate at fair market value, as determined by Carolyn’s executor. This was upsetting to Gordon. Gordon said he could not expect Jeanne, who was Carolyn’s executor, to be fair in her valuation of the house. Gordon said he never trusted Jeanne.

[79] Although Gordon had been living with Carolyn, rent- and expense-free since the early 2000s, and although Carolyn had been giving Gordon financial support every month since about 2009, Gordon did not feel that he had received as much money from Carolyn as his sisters had received. Gordon explained that this was because what he had received was incremental and he could not invest it. Gordon said the homes Carolyn had helped his sisters buy had appreciated significantly in value and were worth about $1 million.

Gordon and Missy’s relationship

[80] Missy said she and Gordon had not been close as children but that until the summer of 2016, they had always gotten along. Missy admitted that she did not approve of Gordon and Carolyn’s living arrangement, particularly at first. She said she came to accept it. Missy said that when her family returned from Australia, she was not sure how her daughters would respond to Gordon, but that they really enjoyed spending time with him.

[81] Missy is critical of Gordon’s treatment of Carolyn and believes that his self-interest trumps his interest in Carolyn’s well-being. However, Missy recognizes that Gordon has become Carolyn’s caregiver and that having Gordon nearby has become important to Carolyn. Missy and Jeanne both say that Carolyn and Gordon should not be separated until it is necessary to do so, for Carolyn’s health and well-being.

[82] Gordon’s attitude toward Missy is not so generous. Gordon says Missy’s interest in this litigation is motivated not by concern for Carolyn but by spite for him. At trial and in communications with Carolyn’s financial advisors and health care providers, Gordon described Missy as a drug addict and a psychopath. Gordon attached to his affidavit irrelevant and highly personal documents written by Missy 30 years ago which discussed struggles Missy had had in her youth. I find that these documents were filed for the purpose of embarrassing and hurting Missy.

[83] Significantly, Gordon testified that sometimes Carolyn would forget that she did not like Missy and that Missy was a threat to them. Gordon said that sometimes, even when he would remind Carolyn that she didn’t like Missy, she would forget again.

The parties’ positions

Missy’s and Jeanne’s position

[84] Missy and Jeanne argue that the powers of attorney Carolyn executed in September 2016 are invalid because Carolyn lacked capacity to execute them and because of undue influence on the part of Gordon. Missy and Jeanne argue that Carolyn was highly vulnerable to undue influence at the time the powers of attorney were executed.

[85] Missy and Jeanne also argue that there were suspicious circumstances surrounding the execution of the powers of attorney and, as such, Gordon, who argues the powers of attorney are valid, bears the onus of proving that Carolyn had capacity to execute them.

Gordon’s position

[86] Gordon’s position is the opposite of that of Missy and Jeanne. Gordon argues that Carolyn had capacity, that there was no undue influence and there were no suspicious circumstances. Gordon argues that Missy and Jeanne bear the onus of proving incapacity.

Were the powers of attorney executed under suspicious circumstances?

[87] I will begin my analysis by considering whether the powers of attorney were executed under suspicious circumstances. This issue will determine whether Missy and Jeanne, on the one hand, or Gordon, on the other hand, bear(s) the burden of proof in respect of whether Carolyn had capacity to execute the powers of attorney.

[88] In the case of a will, suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. (Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 (SCC) at p. 888.)

[89] Suspicious circumstances in any of the three categories affect the burden of proof with respect to knowledge and approval of the contents of a will. The burden with respect to testamentary capacity will be affected if the circumstances reflect on the mental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. (Vout, at pp. 889-890.)

[90] Gordon’s counsel argued that the shift in the burden of proof clearly applies to wills but that it is not clear that it applies to powers of attorney and that different considerations apply. However, in Graham v. Graham, 2019 ONSC 3632, at para. 100, Sheard J. adopted the reasoning in Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, as considered in Vanier v. Vanier, 2017 ONCA 561, and concluded that if there is a finding of suspicious circumstances, the onus of establishing capacity falls on a party seeking to uphold a power of attorney, just as it would in the case of a will. I agree with Sheard J. and adopt her reasoning.

[91] In determining whether there are suspicious circumstances, the court may consider the following factors:

(i) The extent of physical and mental impairment of the testator around the time the will was signed;

(ii) Whether the will in question constitutes a significant change from the former will;

(iii) Whether the will in question generally seems to make testamentary sense;

(iv) The factual circumstances surrounding the execution of the will; and

(v) Whether any beneficiary was instrumental in the preparation of the will. (Royal Trust Corporation of Canada v. Saunders, 2006 CanLII 19424 (Ont. S.C.), at para. 78, citing Schnur, Estate Litigation, looseleaf Toronto: Carswell, 2005), Ch. 2.1.)

[92] I will consider each of the factors listed above which would apply to powers of attorney:

i. The extent of physical and mental impairment around the time the [powers of attorney] were signed

[93] There was evidence that Carolyn was having memory issues at the time the powers of attorney were signed on September 9, 2016.

[94] I have already mentioned that Carolyn’s sister-in-law, Carolyn Mossman, had emailed Missy in April 2014, expressing concern. Ms. Mossman referred to Carolyn’s “significant memory loss”. In her email, Ms. Mossman expressed concern that the memory issues would worsen. In an email later in the month, Ms. Mossman said she knew that Carolyn had become increasingly confused. In her emails, Ms. Mossman was recommending that Carolyn consider moving into a retirement residence.

[95] Missy referred to several incidents in 2015, described earlier in these reasons, which caused her concern about Carolyn’s memory and what might be causing it to fail.

[96] I have also mentioned that, in 2016, Missy arranged for Carolyn to meet with their family doctor, Dr. Salamon, to address Carolyn’s memory issues. Dr. Salamon ordered an MRI and then recommended a geriatric assessment. Carolyn refused to attend the assessment and temporarily terminated her relationship with Dr. Salamon. Carolyn did not believe there was any reason for her to be assessed.

[97] Carolyn visited her brother, David Mossman, at his home in Nova Scotia in August of 2016. Mr. Mossman said he noticed a big change in Carolyn’s cognitive abilities at that time; he said that she asked, more than once, whose house they were in. Gordon had agreed that Carolyn was confused at this time but attributed the confusion to a bladder infection.

[98] Notes taken by Carolyn’s investment advisors at RBC in the last two weeks of September, 2016 referred to having had a “somewhat bizarre conversation” with Carolyn, to Carolyn seeming “confused” and to concerns about Carolyn’s mental state—two of the advisors had spoken with Carolyn multiple times the previous week and she had been confused each time.

[99] An RBC note dated September 16, 2016 indicated that Carolyn had called RBC that day and had said that her current attorney is Jeanne Brown but that she does not trust Jeanne anymore. The note indicated that Carolyn wanted to talk about her power of attorney and about wanting to change her will so that her son would get the house. Carolyn said her daughter makes more than enough money. Carolyn, of course, had signed new powers of attorney and a new will, which gave her son the house, just seven days earlier. The September 16, 2016 note also quoted Carolyn as saying that she believed that her daughter and her family doctor were “canoodling” to try to have her health reviewed, but that she was “FINE!”.

[100] A later note in the RBC file dated October 3, 2016 stated that Carolyn had “appeared very lucid” in a conversation and that she had just returned from a hike. Nonetheless, I am satisfied that around the time Carolyn executed the September 9, 2016 powers of attorney, there were unmistakeable red flags in respect of her memory, level of confusion and lack of insight that those close to her, particularly Gordon who lived with her, should have been aware of.

ii. Whether the [powers of attorney] in question constitute a significant change from the former [powers of attorney]

[101] In September 1996, Carolyn executed a will and a power of attorney for property. Jeanne was the executor of the will and Missy was the alternative executor. The residue of Carolyn’s estate was divided evenly among Gordon, Sandra, Missy and Sandra’s son, Zachary. The 1996 power of attorney for property named Carolyn’s daughter Sandra as her attorney and Missy as substitute attorney.

[102] The 1996 will and power of attorney were prepared by the McGuinty Law Offices in Ottawa.

[103] Sandra died in July 2009. In December 2009, Carolyn executed a new will and new powers of attorney. The 2009 will named Jeanne as executor and Jeanne’s son Carter Brown as substitute executor. The residue of Carolyn’s estate was divided evenly among Gordon, Missy and Zachary. The 2009 power of attorney for property named Jeanne as attorney and Carter as substitute attorney. The 2009 power of attorney for personal care named Missy and Gordon as attorneys, jointly and severally.

[104] The 2009 will and powers of attorney were also prepared by the McGuinty Law Offices.

[105] In several respects, the 2016 powers of attorney naming Gordon as attorney for property and for personal care constitute a significant change from Carolyn’s previous powers of attorney. In 2016, for the first time, Carolyn had given Gordon authority over her property; she had not named Gordon as executor or alternative executor of her 1996 or 2009 wills or as attorney or substitute attorney in her 1996 or 2009 powers of attorney for property. Further, unlike the 1996 and 2009 powers of attorney, the 2016 powers of attorney did not name co- or substitute attorneys. Even in 2009, when Gordon was living with Carolyn and Missy was living in Australia, Carolyn had named both Gordon and Missy as her attorneys for personal care. Finally, the 2016 powers of attorney were not prepared by the McGuinty Law Offices or by any lawyer. Gordon had downloaded Ontario power of attorney templates from the internet; the names of the grantor and the attorney were inserted in handwriting.

[106] Although the validity of Carolyn’s 2016 will is not at issue in these applications, I consider its provisions to be relevant to the suspicious circumstances analysis. In the 2016 will, unlike its two predecessors, Jeanne was not the executor. Unlike its two predecessors, the 2016 will left Gordon the entire residue of Carolyn’s estate and did not leave Missy or Zachary a share. Unlike its two predecessors, the 2016 will was not prepared by the McGuinty Law Offices or by any lawyer. Gordon said he downloaded some will templates, compared them to an old will and then gave them to Carolyn and said “have at it.” In these respects, the 2016 will was distinctly different from the 1996 and 2009 wills.

iii. Whether the will in question generally seems to make testamentary sense

[107] This factor does not apply to powers of attorney.

iv. The factual circumstances surrounding the execution of the [powers of attorney]

[108] Gordon’s position is that, as a result of the July 4, 2016 conversation he had with Missy, Carolyn became very concerned that she was going to be forced to sell her home and move into a retirement residence. Gordon says that Carolyn looked to him for advice about how to protect herself from this “existential threat”, as Gordon described it. Gordon said he suggested that Carolyn give him power of attorney. In cross-examination, Gordon said he had asked Carolyn for power of attorney twice in the past and that he was surprised when she agreed this time.

[109] Significantly, Gordon later admitted that he told Carolyn to change her powers of attorney. Gordon was cross-examined on a note in the RBC file which said that Gordon had admitted that he had told Carolyn to change her will to give him sole authority. Gordon denied having said this and then allowed that the RBC advisor may have written “will” in the note when he should have written “power of attorney.”

[110] In late August or early September 2016, Gordon took Carolyn to McGuinty Law Offices, the lawyers who had prepared Carolyn’s previous wills and powers of attorney. The law firm opened a file for Carolyn on August 31, 2016 but did not do any work for her. I have already described Carolyn and Gordon’s visit to the law firm that day.

[111] Gordon then took Carolyn to see another lawyer, Ron McCloskey. Like the McGuinty firm, Mr. McCloskey did not do any work for Carolyn. I have already noted that Gordon admitted that Carolyn did seem “a bit out of it” during the meeting with Mr. McCloskey.

[112] After visiting two law firms without success, Gordon downloaded forms for powers of attorney and some will templates from the internet. Gordon said he gave them to Carolyn to complete.

[113] The 2016 will named Carolyn’s brother David Mossman as alternative executor, even though Mr. Mossman had declined Carolyn’s request to act as executor in an email dated September 8, 2016. An email dated August 30, 2016 to Mr. Mossman from Carolyn’s email account had asked Mr. Mossman if he would be executor and substitute power of attorney. Mr. Mossman testified that he was confident that it was actually Gordon who had written to him, using Carolyn’s email account, in part because Jeanne’s name was misspelled in the email. Gordon denied that he had written the email. The email to Mr. Mossman was written at 4:28 a.m. There was ample evidence at trial that Gordon was a night owl. I reject Gordon’s evidence that Carolyn just happened to be awake at that time and I find that Gordon wrote the August 30, 2016 email.

[114] Carolyn signed the powers of attorney and the will on September 9, 2016. Gordon testified that he did not know that Carolyn was going to sign the documents that day. He said he was asleep when Carolyn left the house and that she came home and handed them to him after they were signed. Gordon said Carolyn told him she had met her witnesses at a nearby restaurant called Lorenzo’s.

[115] Two of her Carolyn’s friends, Nanette Whitwam and Margaret Hope[^7], witnessed Carolyn’s signature on the documents.

[116] Ms. Whitwam was a witness at the trial. Ms. Whitwam described herself as being “old” and said her memory wasn’t as good as it once was but that it was better than Carolyn’s. Ms. Whitwam said she wanted to correct something in the affidavit she had sworn in 2018. The affidavit said Ms. Whitwam had met with Carolyn at Lorenzo’s Pizzeria on September 9, 2016, but she said at trial they had actually met at a café next store called The Three Sisters.

[117] Ms. Whitwam said Carolyn had asked her and Ms. Hope to witness Carolyn’s signature on some documents. Ms. Whitwam did not see the documents in their entirety and did not know what they were. She said Carolyn had merely said her son had told her to sign them.

[118] A correction had been made to Ms. Whitwam’s affidavit before she signed it in 2018. In reference to the documents Carolyn had signed, the affidavit had originally stated: “I understand that these documents were her Power of Attorney for Property, Power of Attorney for Personal Care and her will.” The word “now” had been inserted in handwriting so that the sentence read: “I understand now that these documents were…” The handwritten revision to the affidavit was initialled. The revision is consistent with Ms. Whitwam’s evidence that she did not know, at the time, what documents Carolyn was signing.

[119] According to Ms. Whitwam, Carolyn’s memory had been declining for several years; she described it as “a gradual business.” Ms. Whitwam said Carolyn’s memory problems were beginning to be very noticeable at the time she witnessed Carolyn’s signature. Ms. Whitwam said she could not say when Carolyn’s memory problems started but it was a couple of years before they day she witnessed Carolyn’s signature and that Carolyn was certainly having issues in 2016.

[120] Ms. Whitwam said that Carolyn seemed “vaguely puzzled” the day she witnessed Carolyn’s signature. She said Carolyn was getting to the point that at times she was confused and didn’t seem too sure of what it was all about.

[121] Gordon described Ms. Whitwam’s evidence as being “right out there.” He said Carolyn’s meeting with her two friends could not have taken place at The Three Sisters, because Carolyn had told him it had been at Lorenzo’s. Gordon also said he had met Ms. Whitman about 100 times and she had incorrectly testified she had only met him once.

[122] Despite the issues raised by Gordon, I accept Ms. Whitwam’s evidence about the September 9, 2016 meeting, including her evidence that it took place at The Three Sisters and not at Lorenzo’s, as Carolyn had told Gordon. Although Ms. Whitwam joked about her age and her memory, she appeared sharp and energetic. Ms. Whitwam testified using Zoom on a computer. When she was asked if she had a copy of her affidavit, she said it was on the computer but that she had read it. She did not flinch when Gordon’s counsel said he was going to use the “share screen” function of Zoom to show her the affidavit. Ms. Whitwam was articulate and answered questions clearly and without hesitation. If she did not know or could not recall the answer to a question, she said so. Ms. Whitwam showed no signs of confusion or memory issues.

v. Whether any [grantee] was instrumental in the preparation of the [powers of attorney]

[123] The powers of attorney were not prepared by a lawyer. Carolyn received no legal advice before she signed them.

[124] As I have already indicated, Gordon downloaded forms for the powers of attorney from the internet and printed them out. He said that he told Carolyn to cut out any parts that did not apply.

[125] I accept Ms. Whitwam’s evidence that Carolyn said that Gordon had told her to sign the powers of attorney. It was not clear whether Gordon had told Carolyn to have Ms. Whitwam and Ms. Hope, specifically, witness her signature or whether he had simply told her to have two people witness her signature.

Conclusion with respect to suspicious circumstances

[126] The factors I have considered, above, all point to the conclusion that the powers of attorney were executed under suspicious circumstances, including suspicious circumstances in respect of capacity and undue influence.

Did Gordon prove that Carolyn had capacity to execute the powers of attorney in September 2016?

[127] As I have found that the powers of attorney were executed under suspicious circumstances, including suspicious circumstances of capacity, Gordon, who wishes to uphold the powers of attorney, bears the burden of proving that Carolyn had the requisite capacity to sign them.

[128] The tests for capacity to give a power of attorney for property and a power of attorney for personal care are different. I will deal with each in turn.

The power of attorney for property

[129] In Ontario, people over the age of 18 are presumed to have the mental capacity to enter into a contract: Substitute Decisions Act, 1992. c. 30, s. 2(1).

[130] A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. (SDA, s. 6.)

[131] A continuing power of attorney is a power of attorney that either states that it is a continuing power of attorney or one that expresses the intention that the authority may be exercised during the grantor’s incapacity to manage property. (SDA, s. 7(1).)

[132] A person is capable of giving a continuing power of attorney if they:

(a) Know what kind of property they have and its approximate value;

(b) Are aware of obligations owed to their dependants;

(c) Know that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) Know that the attorney must account for their dealings with the person’s property;

(e) Know that they may, if capable, revoke the continuing power of attorney;

(f) Appreciate that unless the attorney manages the property prudently its value may decline; and

(g) Appreciate the possibility that the attorney could misuse the authority given to them. (SDA, s. 8(1).)

[133] A continuing power of attorney is valid if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property. (SDA, s. 9 (1).)

[134] To meet his burden to prove that Carolyn had capacity to give a power of attorney for property, Gordon must show that all of the factors in ss. 8(1)(a) to 8(1)(g) of the SDA apply to Carolyn.

[135] In respect of the factor in s. 8(1)(a), there was evidence that Carolyn was aware that she owned a house around the time she executed the powers of attorney. In mid- September, she told RBC she wanted to change her will to give Gordon the house, apparently unaware that she had done just that the previous week. There was no evidence that, at the time Carolyn executed the powers of attorney, she was aware of the approximate value of the house and no evidence that she was aware of her other assets or their approximate value at that time. In respect of the factor in s. 8(1)(b), there evidence that Carolyn was aware that Gordon was dependent on her, generally, but no evidence with respect to whether she knew whether she was required to support him. There was no evidence that any of the other factors listed in s. 8(1) applied to Carolyn at the relevant time.

[136] A person seeking to uphold a will must prove that the testator had the requisite capacity “at the time the will was made.” (Graham, at para. 54, citing Ostrander v. Black, (1996) 12 E.T.R. (2d) 219 (Ont. Ct. (Gen Div.)), at para. 34.) I see no reason why the same rule should not apply to powers of attorney.

[137] Although Gordon’s position, generally, was that Carolyn did not begin to show significant impairment until June of 2017, he also testified that she was “ditzy” at times, and that, over the years, she occasionally had memory issues or what he called “brain farts” or was “out of it” either due to bladder infections or pneumonia. Gordon acknowledged that Carolyn had been “a bit out of it” the day they met with the lawyer Mr. McCloskey. It is evident from the record that Carolyn had good days and bad days. I have already referred to the concerns Carolyn’s advisors at RBC had about Carolyn’s capacity and confusion in September, 2016 but also to the October 3, 2016 RBC note which described her as being lucid.

[138] Gordon gave no evidence about Carolyn’s capacity at the time she signed the powers of attorney. Gordon was not present when they were signed. He testified that he was asleep when Carolyn left the house to meet with Ms. Whitwam and Ms. Hope and that she came home and told him that they had met at Lorenzo’s.[^8]

[139] The evidence of Ms. Whitwam does not assist Gordon. I have accepted Ms. Whitwam’s evidence that Carolyn was having memory problems around the time the powers of attorney were signed and that Carolyn seemed “puzzled” and unsure the day she signed them. I have also accepted Ms. Whitwam’s evidence that she met Carolyn and Ms. Hope at The Three Sisters, and not at Lorenzo’s, which means Carolyn was incorrect when she returned home and told Gordon they had met at Lorenzo’s.

[140] Gordon was unable to explain why Carolyn would have signed a will on September 9, 2016 that named David Mossman as alternative executor. The previous evening, Mr. Mossman had sent an email to Carolyn’s email account, declining the request that he act as executor. If Carolyn did not know about the email, and did not know that Mr. Mossman had refused to act as executor, she at least should have known that Mr. Mossman had not yet replied to the request that he act as executor. That Carolyn signed the will under these circumstances raises red flags about her capacity to appreciate what she was signing that day.

[141] For these reasons, I find that Gordon has failed to prove that Carolyn had capacity to execute the power of attorney for property on September 9, 2016 and that this power of attorney is invalid.

[142] Two capacity assessors retained by Missy and Jeanne, Dr. Francine Sarazin and Dr. Kenneth Shulman testified as expert witnesses to provide retrospective opinions about Carolyn’s capacity to revoke and grant the 2016 powers of attorney. Dr. Sarazin concluded there was “reasonable evidence in support of a determination of incapacity” at the time Carolyn revoked and granted the power of attorney for property. Dr. Shulman concluded that Carolyn did not have the requisite capacity to revoke or grant a power of attorney for property at that time. I accept the expertise of both Dr. Sarazin and Dr. Shulman. As I have concluded that Gordon had the burden to prove Carolyn’s capacity at the time she executed the power of attorney for property and that he has failed to meet that burden, I do not propose to discuss the opinions of Drs. Sarazin and Shulman at this time. I will refer to them again, below. Gordon did not present expert evidence in response to the reports of Dr. Sarazin and Dr. Shulman.

The power of attorney for personal care

[143] A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning their own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. (SDA, s. 45.)

[144] A person is capable of giving a power of attorney for personal care if the person,

(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and

(b) appreciates that the person may need to have the proposed attorney make decisions for the person. (SDA, s. 47(1).)

[145] A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care. (SDA, s. 47(2).)

[146] The test for giving a power of attorney for personal care is considerably lower than the test for a power of attorney for property.

[147] My conclusion that Gordon had no evidence about Carolyn’s capacity at the time she signed the power of attorney for property on September 9, 2016 and my finding that there was evidence that she was puzzled and unsure at the time, apply equally to the power of attorney for personal care.

[148] I also find that at the time she signed the powers of attorney, Carolyn lacked insight into who had a genuine concern for her welfare. I have already referred to how in late August 2016, for example, Carolyn had refused to undergo a geriatric assessment her long-time family physician Dr. Salamon had recommended. Carolyn then became extremely suspicious of Dr. Salamon. At the same time, Carolyn was turning against Missy; in early September, Carolyn told Missy she was angry with her and did not want to see her for dinner anytime soon. A few days later, Gordon told Missy that Carolyn was mad at her and did not want to talk to her. Gordon told Missy that he believed that Missy was agitating to have Carolyn assessed so that she could be declared mentally unfit. Around the same time, Carolyn also decided that she could not trust Jeanne anymore. Carolyn chose Gordon, rather than Jeanne, to be executor of her 2016 will and her attorney for property, even though Carolyn had chosen Jeanne to fulfill these roles in 1996 and 2009. Carolyn told RBC on September 16, 2016 that she no longer trusted Jeanne.

[149] Dr. Shulman’s opinion was that Carolyn’s suspiciousness was a manifestation of dementia and that her change in attitude toward Missy, in particular, was based on misperceptions and delusions. Dr. Shulman concluded that, on a balance of probabilities, Carolyn did not have the capacity to grant or revoke a power of attorney for personal care.

[150] Although the bar for proving capacity to give a power of attorney for personal care is low, Gordon has not satisfied me that, at the time Carolyn signed the power of attorney for personal care, she had the ability or insight to determine whether anyone, including Gordon, had genuine concern for her welfare.

[151] For these reasons, I find that Gordon has failed to prove that Carolyn had capacity to execute the power of attorney for property on September 9, 2016 and that this power of attorney is invalid.

Was there undue influence in respect of the powers of attorney?

[152] In the event that my conclusions with respect to Carolyn’s capacity to give the powers of attorney, or either of them, are found to be wrong, I will consider whether there was undue influence in relation to the powers of attorney.

[153] Undue influence sufficient to invalidate a will or a power of attorney must be more than influence or persuasion. There must be coercion. (Scott v. Cousins, [2001] O.J. No. 19, 37 E.T.R. (2d) 113 (Ont. S.C.J.) at para. 112.)

[154] In determining whether undue influence has been established, courts have traditionally looked to such matters as the willingness or disposition of the person alleged to have exercised it, whether an opportunity to do so existed and the vulnerability of the testator or testatrix. The degree of pressure that would be required to coerce a person who is elderly and confused is likely to be significantly less than that which would have the same effect on persons in full possession of their faculties. (Scott, at para. 114.) The testatrix (or, in the case of a power of attorney, the grantor) does not have to be threatened or terrorized; effective domination of her will by that of another is sufficient. (Scott, at para. 114, citing Crompton v. Williams, 1938 CanLII 66 (ON SC), [1938] O.R. 543 (Ont. H.C.J.) at p. 583.)

[155] There is a presumption of undue influence in circumstances where the potential for domination exists. (Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353 (SCC).)

[156] I find that the relationship between Carolyn and Gordon at the time the powers of attorney were signed in September 2016 triggers the presumption of undue influence. Carolyn was 86 years old at the time and, more significantly, was suffering from memory lapses and confusion. Family members thought Carolyn should consider moving to an assisted living situation before her condition worsened. By September of 2016, Gordon had been living with Carolyn for 12 to 14 years. Carolyn wanted to stay in her own home, and she needed Gordon in order to stay there. Carolyn had accepted Gordon’s narrative that she should no longer trust Missy, Dr. Salamon or Jeanne. There was evidence from Carolyn Mossman that Gordon was verbally abusive toward Carolyn. In 2008, Carolyn had called the police after they had a fight. On July 4, 2016, Missy had accused Gordon of treating Carolyn like a slave. I find that Carolyn was highly dependent on Gordon at this time and that theirs was a relationship with the potential for domination.

[157] To rebut the presumption of undue influence, Gordon must show that Carolyn gave Gordon her powers of attorney as a result of her own “full, free and informed thought.” (Geffen, citing Zamet v. Hyman, [1961] 3 All E.E. 933 at p. 938.)

[158] There is ample evidence that the 2016 powers of attorney were not a product of Carolyn’s full, free and informed thought.

[159] I have already mentioned that, during cross-examination on one of the RBC notes, Gordon admitted that he told Carolyn to change her powers of attorney to give him exclusive authority. There was no informed reason for Carolyn to do this, even if she was worried that Missy wanted to force her out of her house. Missy was not Carolyn’s sole attorney for personal care; Missy and Gordon shared this responsibility. Missy had no control over Carolyn’s property; Jeanne was Carolyn’s attorney for property. However, Carolyn had stopped trusting Jeanne, just as she had stopped trusting Missy. Carolyn was relying on Gordon, who had persuaded that that Missy was trying to remove her from her home, to prevent Missy from doing so. Gordon told Carolyn to change her powers of attorney and she did so.

[160] I have also already referred to Ms. Whitwam’s evidence, which I have accepted, that Carolyn said that Gordon had told her to have the documents she brought to The Three Sisters on September 9, 2016 signed and witnessed.

[161] Gordon admitted that he had suggested that Carolyn change her powers of attorney to make him her attorney to protect them from Missy’s existential threat. Gordon was unable to explain, however, how Carolyn’s change to her will, cutting Missy and Zachary out as beneficiaries and leaving Gordon the entire residue of her estate, would protect Carolyn in any way or help her to stay in her home. There was no reason for Carolyn to have made this change to her will at this time. I have already referred to the note of the RBC advisor who wrote that Gordon had admitted that he had told Carolyn to change her will to give him sole authority. I am satisfied that Gordon said this to the RBC advisor and also that Gordon had indeed told Carolyn to change her will.

[162] One of the recorded conversations between Gordon and Carolyn as they reviewed Missy and Jeanne’s application record was as revealing as it was uncomfortable to listen to. Although this tape was made in December 7, 2017, 15 months after the powers of attorney were signed, it provides insight into what Gordon was telling Carolyn and the extent to which she had become dependent on him, at least by that time. Early in the recording, Carolyn says to Gordon: “I trust you. If I can’t trust you, what am I going to do?” Later, Carolyn says that Gordon had thought she was going to be ambushed by Dr. Salamon. At one point, Gordon says: “Missy just wants you locked up. Because she is a psychopath.” Later, Gordon says that Missy doesn’t care about the money, “she just wants you locked up.” Gordon tells Carolyn that Jeanne is a “great, sly actor” and that Jeanne helped Carolyn write Carolyn’s old will, which had given everything to Jeanne and her son Carter. Gordon explains to Carolyn that, in their application, Missy and Jeanne are asking to become guardians of her property. Carolyn asks, “when do I get it back?” Gordon says: “Never. That’s what they are hoping.” Gordon says that he is the one with a legal background and that “they” are just a bunch of jealous shrews. Carolyn says she wants to telephone Missy and asks Gordon if she is putting herself in danger if she calls her. Somewhat ironically, Gordon replies by telling Carolyn that she is in danger of being manipulated by Missy.

[163] There is no reason to think that Gordon’s conversations with Carolyn leading up to the execution of the powers of attorney on September 9, 2016 were any different from the conversation of December 7, 2017, in which Gordon denigrated Missy, Dr. Salamon and Jeanne and misled Carolyn about Missy’s and Jeanne’s intentions.

[164] I accept the opinion of Dr. Sarazin that Carolyn would have been vulnerable, and Dr. Shulman’s opinion that Carolyn would have been extremely vulnerable to influence at the time she signed the powers of attorney.

[165] For these reasons, I find that Gordon has failed to show that Carolyn signed the powers of attorney as a result of her own “full, free and informed thought” and has failed to rebut the presumption of undue influence arising from his and Carolyn’s relationship. I find that even if Carolyn had the capacity to sign one or both powers of attorney, they are not valid due to undue influence.

Issue #3: If the powers of attorney are valid, should Gordon be removed as Carolyn’s attorney for property and of personal care?

[166] As I have found that the powers of attorney are not valid, it is not necessary to consider this issue.

Issue #4: If the powers of attorney are not valid, should the attorneys named in Carolyn’s 2009 powers of attorney be appointed as her guardians for property and personal care? Or should Missy and Jeanne or Gordon be appointed as her guardians?

[167] The duties of guardians for property and guardians of the person are set out in sections 32 and 66 of the SDA, respectively.

[168] In appointing a guardian for property, the court shall consider whether the proposed guardian is the attorney under a continuing power of attorney, the incapable person’s current wishes and the closeness of the applicant’s relationship to the incapable person. Where there is an ongoing valid power of attorney, cases in Ontario and elsewhere have held that the court must first determine whether there is strong evidence of misconduct or neglect on the part of the attorney before the court should ignore the wishes of the donor. (Bennett v. Gotlibowicz, 2009 CanLII 33031 (ON SCDC), at para. 7.)

[169] I have found the power of attorney for property Carolyn signed in 2016 to be invalid. In the circumstances, I do not hesitate to find that, in accordance with Carolyn’s 2009 power of attorney for property, Jeanne should be Carolyn’s guardian for property and that Carter should be the alternative attorney. I reject any evidence that Carolyn had actually stopped trusting Jeanne. I find that Carolyn’s statement to that effect to RBC in September 2016 was a product of Gordon’s influence.

[170] I find that Gordon is not a suitable attorney for property for Carolyn. I consider it significant that Carolyn had not named Gordon as her attorney or substitute attorney for property in 1996 or 2009 and conclude that she had reasons for not having done so. I also consider Gordon’s financial dependency on Carolyn and his strong desire to continue living in her home preclude him from fulfilling this role due to a conflict of interest.

[171] I have also found the 2016 power of attorney for personal care to be invalid. In 2009, Carolyn had named Gordon and Missy as her attorneys for personal care, jointly and severally. I am satisfied that Missy is able to fulfil the duties of guardian of the person. However, for several reasons, I am not satisfied that Gordon is able to do so.

[172] A guardian must make decisions that are in the incapable person’s best interests. Gordon has not done this consistently for Carolyn. For example, in 2016, Dr. Salamon recommended that Carolyn undergo a geriatric assessment. Gordon was afraid that this would result in a recommendation that Carolyn should move to a retirement residence. I am satisfied that Gordon persuaded Carolyn not to undergo this assessment at the time and to cut ties with Dr. Salamon. No consideration appears to have been given by Gordon to whether Carolyn required or would benefit from this assessment that her long-time doctor had ordered. However, in June 2017, Gordon took Carolyn to two hospitals, seeking an urgent declaration that Carolyn was mentally incompetent, because Gordon was afraid at that time that Missy would manipulate Carolyn into changing her power of attorney and then try to sell Carolyn’s house. Both decisions were motivated by Gordon’s concern that the house would be sold, not what was best for Carolyn.

[173] Also of concern is the total disregard for Carolyn’s privacy Gordon showed when he taped all of Carolyn’s telephone conversations and planted recording devices in her purse. Gordon explained that he taped these conversations because of Missy’s threats that she would remove them from Carolyn’s house. I have already found that Missy had no such plan. Monitoring Carolyn in this manner was highly intrusive and not in Carolyn’s best interests.

[174] A guardian must seek to foster regular personal contact between the incapable person and supportive family members and friends. Gordon would not foster Carolyn’s relationships with Missy or Jeanne. It is evident from the recording of December 7, 2017 that Gordon has actively done the opposite. Gordon said that he might encourage Carolyn’s brother George and his wife Carolyn to visit Carolyn, but added that he would want to tape their visits. Gordon also said that it might be all right for Missy’s children to visit Carolyn, but without their parents.

[175] It is concerning that Gordon did not consult anyone other than Carolyn when he prepared his guardianship plan. He said he had been in contact with Carolyn’s physician over the years and had reviewed Dr. Salamon’s file. He said his plan was based on a review of these records and the insight he had gained from consulting with the physician over time. Gordon also relied on the report of an occupational therapist.

[176] It is also concerning that Gordon said that he would discontinue a companion service for Carolyn that had been recommended for her and that she had been receiving and apparently enjoying. Gordon said that Carolyn does not remember the visits and is unhappy with how much they cost. It is more likely that Gordon was unhappy about the cost.

[177] It is also concerning to me that Gordon has failed to follow court orders. Gordon admitted that he had failed to comply with Kershman J.’s order to stop recording Carolyn’s conversations. It was evident from Gordon’s evidence that he felt justified in ignoring a court order if he did not agree with it.

[178] Missy and Jeanne were critical of Gordon for not having passed accounts, despite being ordered to do so. Gordon’s lawyer said that it had been his understanding that Gordon was not required to pass accounts until after the trial and that the passing of accounts was delayed because the trial had been delayed due to the COVID-19 pandemic. I accept Gordon’s lawyer’s explanation and do not fault Gordon for not having passed accounts.

[179] Finally, although Carolyn’s wish in 2009 had been that Gordon and Missy act as co-attorneys for personal care, it is abundantly clear that Gordon and Missy would not be able to work together to make joint decisions about Carolyn’s care. They do not trust each other to act in Carolyn’s best interests or otherwise. Missy recognizes that Gordon has been caring for Carolyn and is very much part of Carolyn’s environment and that, to the extent that Carolyn’s doctors believe that it is in Carolyn’s best interests, the arrangement should continue. Gordon showed no willingness to share Carolyn with Missy or to cooperate with Missy in any way.

[180] Just as I am satisfied that Missy can fulfill the duties of guardian of the person, I am satisfied that Jeanne can do so. Although Carolyn had not previously named Jeanne as an attorney for personal care, that Carolyn had chosen Jeanne to be her executor and attorney for property in 1996 and again in 2009 satisfies me that Carolyn trusted Jeanne and had confidence in Jeanne to act in her best interests.

[181] Missy and Jeanne’s guardianship plan recognizes the importance of Gordon in Carolyn’s life and says that Missy and Jeanne would support their relationship to the extent that it is consistent with Carolyn’s safety and security. The plan says that Missy and Jeanne would consult with Gordon. It also recognizes that Gordon would require on-going financial support from Carolyn.

[182] The guardianship plan that was filed said that Missy and Jeanne did not believe that Carolyn and Gordon should continue to live together, however, at trial, Missy and Jeanne said they would not seek to remove Carolyn or Gordon from the home, provided they could be satisfied that it was in Carolyn’s best interests to remain in the home with Gordon and that Carolyn was receiving all necessary care and support.

[183] In summary, I conclude that it is in Carolyn’s best interests for Missy and Jeanne to be jointly appointed as Carolyn’s full guardians of the person.

[184] Missy and Jeanne will be required to file, for approval, an updated guardianship plan which is consistent with the intentions they expressed in their oral evidence at trial.

Disposition

[185] In conclusion, further to Kershman J.’s order of May 1, 2018, declaring Carolyn Brown to be incapable of managing her property and her personal care:

(a) I declare that the powers of attorney for property and for personal care dated September 9, 2016 are not valid;

(b) I declare the power of attorney for property dated December 17, 2009 to be operative;

(c) I declare the power of attorney for personal care dated December 17, 2009 to be of no effect and I appoint Christina (Missy) Rudin-Brown and Jeanne Brown as Carolyn Brown’s joint and full guardians of the person.

(d) Christina (Missy) Rudin-Brown and Jeanne Brown shall file an updated guardianship plan for approval.

[186] If there are related matters that require determination, I may be spoken to.

Costs

[187] The parties filed costs outlines at the conclusion of the trial.

[188] Missy and Jeanne may deliver brief costs submissions within 14 days of the date of these reasons. Gordon may deliver brief responding submissions within a further 14 days. Missy and Jeanne may then deliver reply submissions within a further seven days.

Decision Date

[189] For purposes of an appeal, the date of this decision shall be the date of release of these reasons.

Released: May 13, 2021

APPENDIX

May 13, 2021

1. In the title of proceedings, Rodrigue Escayola, Counsel for Carolyn Emily Brown; Joseph W. L. Griffiths, Counsel for Gordon Russell Brown now reads: Rodrigue Escayola, Counsel appointed under s. 3 of the Substitute Decisions Act; Joseph W. L. Griffiths, Counsel for Gordon Russell Brown

2. Rodrigue Escayola, Counsel for Carolyn Emily Brown; Ian B. McBride and Natalie Scott, Counsel for Christina Rudin-Brown and Jeanne Brown now reads: Rodrigue Escayola, Counsel appointed under s. 3 of the Substitute Decisions Act; Ian B. McBride and Natalie Scott, Counsel for Christina Rudin-Brown and Jeanne Brown

COURT FILE NO.: 17-74763 & 18-76346

DATE: 20210513

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Christina Rudin-Brown and Jeanne Brown

Applicants

AND

Carolyn Emily Brown, Gordon Russell Brown and Public Guardian Trustee

Respondents

AND BETWEEN:

Gordon Russell Brown

Applicant

AND

Carolyn Emily Brown, Christina Rudin-Brown and Jeanne Brown and Public Guardian Trustee

Respondents

amended REASONS FOR JUDGMENT

Madam Justice H. J. Williams

Released: May 13, 2021

[^1]: After my first reference to each of the parties, I will refer to them by their first names. I mean no disrespect. [^2]: Christina testified that she has always been known as “Missy”, a name given to her by her late sister Sandra, who had trouble pronouncing Christina. Most of the witnesses at the trial referred to her as Missy. In these reasons, I will do the same. [^3]: These recording were marked as Exhibits A through O. [^4]: The excerpt from a recording was marked as Exhibit P and the recording was marked as Exhibit Q. [^5]: Sopinka et al, The Law of Evidence, 5th ed. (LexisNexis, 2018) at 9.1 [^6]: Supra, note 2, at 9.15. [^7]: Ms. Hope was not a witness at the trial. [^8]: Gordon’s and Ms. Whitwam’s evidence may raise issues about Carolyn’s knowledge and approval of the documents she signed. This issue was not raised at the trial.