COURT FILE NO.: 03-124/17

DATE: 20210729

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF AN APPLICATION TO PASS ACCOUNTS

B E T W E E N:

William and carol cochrane

Applicants/Trustees

• and -

benjamin cochrane

Respondent/Objector

Christopher Graham, for the Applicants/Trustees

Brendan van Niejenhuis, Carlo di Carlo, Caitlin Milne and Saba Ahmad, for the Respondent/Objector

HEARD at Toronto: November 18, 19, 20, 23, 24, 25, 26, 27, 30, December 1, 2, 3, 17, 2020 and February 5, 2021

Reasons for judgment

Table of Contents

A. Overview.. 2 B. Preliminary Issues. 4 (a) General comments about the Statement of Accounts. 4 (b) Benjamin’s decision not to testify. 8 C. Unpaid “Disbursements” 9 (a) Case Manager Expenses. 9 (b) Academic Support by Bill and Carol Cochrane. 10 (c) Supervision Care Expense. 10 (d) Monthly Bookkeeping Expenses. 11 (e) Managing Banking Activities. 11 (f) Driving lessons. 12 (g) Surety Supervision.. 12 D. Remaining Disbursements. 13 (a) Academic Support 13 (b) Caregiving Expenses. 15 (c) Family Respite. 16 (d) Maple Creek Ranch.. 17 (e) Guitar Lessons. 18 (f) Other Activities During High School 19 (g) Psychological Services for Ken Cochrane. 20 (h) Monthly Fax. 20 (i) Heritage College Tuition and Expenses. 21 (j) Computer Expenses. 23 (k) Master’s College Tuition and Expenses. 24 (l) Credit Card Payments. 25 (m) Student Loan Repayment 26 (n) Moving Expenses. 27 (o) Car Expenses. 27 (p) Car Insurance. 29 (q) Laundry, Grocery and Gas. 31 (r) Monthly Transportation Expenses. 33 (s) Medical Expenses. 33 (t) Civil Lawsuit with Maggie Lalonde. 36 (u) 2015 Assault Charges. 37 (v) Transfers to Benjamin and Bill’s joint account 38 (w) Transfers to Benjamin’s Personal Account 39 (x) Monthly Rent 40 (i) September 2002 to September 2005. 41 (ii) September 2005 to April 2010 – Master’s College. 41 (iii) May 2010 to December 2011. 43 (iv) January 2012 to April 2014 – Student Loan Repayment Period. 44 (v) May 2014 to March 2015. 45 (vi) April 2015 to March 2016. 45 (y) Miscellaneous. 45 E. Trustee Compensation and Legal Fees. 47 F. Conclusion. 48

DAVIES J.

A. Overview

[1] When Benjamin Cochrane was 12 years old, he was hit by a car while riding his bicycle and suffered a serious brain injury. He was in a coma for several days and spent months undergoing intensive physical and neurological rehabilitation at Bloorview MacMillan Children’s Centre.

[2] Benjamin’s parents, William (“Bill”) and Carol Cochrane, brought an accident benefits claim against Co-operators General Insurance on Benjamin’s behalf.[^1] That lawsuit settled for $475,000 in 2000 when Benjamin was 16 years old. The settlement money was invested in an annuity that will make monthly payments for Benjamin’s benefit for the rest of his life. If Benjamin lives to be 80 years old, he will receive over $2 million in monthly payments through the annuity.

[3] The Court approved the settlement of Benjamin’s lawsuit and ordered the annuity payments be made “to William and Carol Cochrane in trust for the irrevocable benefit of Benjamin Cochrane.” No management plan was prepared for how the trust funds would be used.

[4] Bill and Carol now apply for the first time to pass the Statement of Accounts for their administration of Benjamin’s trust.

[5] The parties agree that the trust received $418,675.25 between September 2000 when it was established and March 2017 when Bill and Carol first filed their application to pass their accounts. By March 2017, there was no money left in the trust.

[6] As the trustees, Bill and Carol were entitled to spend the trust money on goods and services for Benjamin’s benefit: Trustees Act, R.S.O. 1990, c. T.23, s. 23.1. However, Bill and Carol must now account for how Benjamin’s trust money was spent. The issue for me to decide is whether Bill and Carol have established that the disbursements from the trust were incurred in accordance with the terms of the trust: Irwin v. Ruberry, 2015 ONSC 1821, at para. 43; Steven Thompson Family Trust v. Thompson, 2012 ONSC 7138 at para. 36. If I find that a disbursement was inappropriately charged to the trust or is inconsistent with the terms of the trust, I can disallow it. I can also order Bill and Carol to repay the trust for disallowed disbursements or unaccounted for funds: Trustees Act, s. 23.1(2); Steven Thompson at para. 36.

[7] Bill and Carol do not have receipts or documentation to support most of the disbursements in the Statement of Accounts. Nevertheless, they argue that they have fully accounted for the $418,672.25 received by the trust. Bill and Carol also ask that any order I make requiring them to repay the trust be offset by the amount they are entitled to receive as trustee compensation.

[8] Benjamin objects to the passing of the Statement of Accounts. He argues that Carol and Bill treated his trust money as their own and cannot account for how most of it was spent. Benjamin admits he received $21,289.40 from the trust. He argues that Bill and Carol cannot account for the remaining $397,385.85 and should be ordered to repay that amount to the trust.

[9] Bill and Carol have accounted for $253,144.11 of the $418,675.25 received by the trust. They have not accounted for $165,531.14. Bill and Carol are entitled to $15,000 in compensation from the trust which will offset the amount owing. Bill and Carol are required to repay the trust $150,531.14. Appendix A provides a summary of the expenses that are allowed by category.

B. Preliminary Issues

[10] Before embarking on a detailed assessment of the Statement of Accounts, I will make a few preliminary comments about the nature of my task and the state of the evidentiary record.

[11] This is a difficult case because Bill and Carol are both Benjamin’s parents and the trustees of his trust. The issue at this trial is not whether Bill and Carol are or were good parents to Benjamin. The issue is whether they discharged their legal obligations as the trustees of Benjamin’s trust. To the extent I am critical of Bill and Carol in these reasons, I am not criticizing them as Benjamin’s parents. Bill and Carol appear to be loving parents to Benjamin (and all their children). I accept that at every turn they did what they thought was best for Benjamin. Bill and Carol supported Benjamin unconditionally through his recovery. They made significant sacrifices individually and as a family to provide for Benjamin in the years after the accident. And they have continued to support Benjamin throughout his life.

[12] To the extent I am critical of Bill or Carol in these reasons, my criticism is focused on their failure to meet their legal duties to Benjamin as the trustees of his trust. Distinguishing between their role as Benjamin’s parents and their role as trustees probably feels like an artificial exercise to Bill and Carol. However, as trustees, Bill and Carol had specific and important legal obligations to Benjamin. They had a duty to act honestly in their administration of the trust. They had a duty to act with reasonable skill and prudence: Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8, [2018] 1 S.C.R. 224, at paras. 16-18. They had a duty to keep proper records and accounts for the trust. While they did not have a duty to pass accounts, they did have a duty to be in a position at all times to prove they were administering the trust in an honest and prudent manner: Zimmerman v. McMichael Estate, 2010 ONSC 2947, at para. 31; Class v. Smith, 2018 ONSC 623, at para. 49; Tarantino v. Galvano, 2017 ONSC 3535, at para. 47; Wall v. Shaw, 2018 ONCA 929, at para. 23. The issue for me to decide is whether Bill and Carol lived up to their obligations as trustees, not whether they lived up to their obligations as parents.

(a) General comments about the Statement of Accounts

[13] The Statement of Accounts covers 17 years and contains 2208 disbursements. Assessing an account of that size is inherently complicated and laborious. However, the task of assessing Bill and Carol’s Statement of Accounts is further complicated by the lack of supporting documentation and the manner in which the accounts were prepared.

[14] Bill and Carol do not have receipts or documentation to support most of the disbursements in the account. Bill and Carol testified that they administered the trust entirely in cash. They withdrew the annuity payment each month in cash. They testified that they kept the cash in a safe in their house and spent it as expenses arose. Bill and Carol did not keep detailed or accurate records of how the cash was spent. As a result, many of the disbursements are estimates. The Statement of Accounts is just Bill and Carol’s best effort to reconstruct what happened to the $418,675.25 received by the trust.

[15] Invoices and receipts will often be the simplest and most reliable way to prove expenses paid from a trust. But receipts and invoices are not the only way for Bill and Carol to satisfy their burden of proof. I can draw reasonable inferences from the testimony and available documentary evidence. Even without receipts and invoices, I can find that some or all of the disbursements claimed are legitimate. However, without supporting documentation, Bill and Carol’s credibility and the reliability of their testimony take on great significance.

[16] Carol and Bill both explained why they do not have receipts and invoices. They testified that nobody told them they were required to keep records for each disbursement when the trust was established. Thomson Rogers LLP acted for Bill, Carol and Benjamin on the accident benefits claim arising from Benjamin’s accident. Bill and Carol have an outstanding lawsuit against Thomson Rogers in which they allege that Thomson Rogers were negligent because they failed to advise them on their legal obligations as trustees. The damages Bill and Carol are seeking from Thomson Rogers include any amount I order them to repay Benjamin’s trust on this application. I do not need to decide what, if any, advice Bill and Carol received when Benjamin’s trust was established. That is a factual issue to be resolved in the lawsuit between Bill and Carol and Thomson Rogers. Even if Bill and Carol received no advice on how to administer the trust, that does not change their legal obligation to keep proper accounts for Benjamin’s trust. It also does not change their legal burden to prove that all the expenditures from the trust are appropriate.

[17] The way the Statement of Accounts was prepared also added to the length and complexity of this trial because many of the entries in the Statement of Accounts and many of the documents produced in support are misleading.

[18] The Statement of Accounts contains hundreds of disbursements for services that Bill and Carol purportedly provided to Benjamin or the trust. There are disbursements for case management services, bookkeeping services, banking services, academic support and general supervision. The Statement of Accounts shows all of these disbursements as having been paid to Bill and Carol. Bill and Carol submitted signed receipts for most of these disbursements that appear to confirm they were paid for their services. Below are a few examples of the hundreds of receipts submitted by Bill and Carol for services they purportedly performed:

[19] Carol and Bill both testified that they were not actually paid by the trust for their services. Carol testified there was never enough money in the trust to pay her and Bill for the services they provided as trustees. Bill and Carol testified that they only included their unpaid services as disbursements in the account to offset any expenses that are disallowed and to reduce the chance they will be required to repay the trust. These “unpaid disbursements” should not have been included in the Statement of Accounts. They distort and distract from the truth of what happened with Benjamin’s money.

[20] The “unpaid disbursements” total more than $215,000. With the unpaid disbursements included, the Statement of Accounts suggests the trust disbursed $664,293.36, which is $245,618.11 more than the trust received. To account for this apparent overspending, the Statement of Accounts shows that Bill and Carol loaned the trust $245,618.11 over the years.

[21] The loans in the Statement of Accounts are fictitious. There are no loan agreements to document any contribution by Bill and Carol to the trust. Bill and Carol testified that they never expected Benjamin or the trust to repay the loans. The loans were only included to ensure the trust receipts match the artificially inflated disbursements.

[22] The unpaid disbursements and the fictitious loans render the Statement of Accounts inaccurate and misleading. They also make it difficult to decipher what actually happened to the cash that Bill and Carol withdrew from the trust account each month.

[23] To add to the confusion, Bill and Carol also created “receipts” for services purportedly provided by third parties. For example, the Statement of Accounts suggests that Benjamin went to Sylvan Learning Centre for academic support and tutoring from September 2000 until December 2001. Bill and Carol submitted a “receipt” for each entry in the account for Sylvan. Here is one example of those receipts:

[24] According to the Statement of Accounts, Benjamin attended Oxford Learning Centre for academic support and tutoring from January 2002 until May 2010. Carol and Bill submitted similar “receipts” for each entry for Oxford as well:

[25] In reality, Carol and Bill never got receipts from Sylvan or Oxford. Carol created all of the receipts for Sylvan and Oxford in 2017 when they were preparing the Statement of Accounts. Separating legitimate receipts from those created by Carol and Bill added another level of complexity to this case.

[26] Had the Statement of Accounts been prepared in a more transparent, straightforward manner, the task of assessing the validity of the disbursements claimed would have been much less difficult.

[27] Given the enormity of the account, it is not feasible to address each disbursement individually. To the extent possible, I have addressed the disbursements in categories. For each category, I first decided whether the expense was incurred by the trust. In other words, was the disbursement paid by the trust or is it an unpaid disbursement included to offset any repayment order? If I found the disbursement was not paid by the trust, I have disallowed it. My task is to assess the propriety of expenses paid by the trust: Steven Thompson, at para. 36. My task is not to assess whether an expense would have been approved had it been paid by the trust. If I found that a disbursement was paid by the trust, I then decided whether Bill and Carol have established that the expense was for the amount claimed and that it was incurred for Benjamin’s benefit in accordance with the terms of the trust.

(b) Benjamin’s decision not to testify

[28] Benjamin called evidence but did not testify himself. Bill and Carol argue that I should draw an adverse inference against Benjamin because he did not testify. Their counsel did not articulate what specific adverse inference I should draw. I understand the submission to be that I should infer that, because Benjamin chose not to testify and contradict Bill and Carol, he accepts the veracity of their evidence about how the trust funds were spent.

[29] I am not prepared to draw such an inference in this case. Benjamin was not required to testify. The onus is on Bill and Carol to prove how Benjamin’s trust funds were spent. Benjamin’s position is clear. He does not accept the validity of the accounts and he calls upon Bill and Carol to formally pass their accounts, as he is entitled to do. Their evidence was vigorously tested in cross-examination. Their credibility and reliability were challenged and remain a central issue in this case.

[30] Benjamin’s decision not to testify does mean there is an absence of evidence from him about certain important issues in this trial. It also means that there is no evidence to contradict some of Bill and Carol’s testimony. The absence of evidence from Benjamin is relevant to my resolution of some contested issues. But I am not required to accept Bill and Carol’s testimony just because there is no evidence to contradict it. For each issue, I must decide whether Bill and Carol’s testimony is credible and reliable on its own or when considered together with other evidence, including the evidence Benjamin called to contradict them. If I accept Bill and Carol’s evidence about a particular issue, they will have satisfied their burden in respect of that issue without any need to draw an adverse inference against Benjamin. If I do not accept Bill and Carol’s evidence about a particular issue or disbursement, they will not have discharged their burden. Drawing an adverse inference against Benjamin based on his decision not to testify cannot bolster evidence I have otherwise found to be incredible or unreliable

[31] I will give just one example of how Benjamin’s decision not to testify influenced my decision in this case. Benjamin argues that when he turned 18, he was entitled to the trust assets and Bill and Carol were required to turn control over the monthly payments to him. In the alternative, Benjamin argues that he had a right to apply to collapse the trust when he turned 18. Benjamin argues that he was deprived of the right to enforce the terms of his trust or apply to dissolve the trust because Bill and Carol hid the existence of the trust from him.

[32] Bill and Carol both testified that Benjamin knew they were getting monthly payments from the settlement of his lawsuit and also knew the money they were receiving was for his benefit. Bill and Carol adduced several signed “Verification of Annuity” forms that Bill and Benjamin were required to sign on an annual basis to continue the monthly payments. Bill identified his signature and Benjamin’s signature on the documents. Benjamin could have testified about the Verification of Annuity forms but chose not to. I, therefore, have no evidence to contradict Bill’s evidence that Benjamin signed the forms.

[33] I accept Bill’s evidence that Benjamin signed the Verification of Annuity forms. There is no need for me infer that if Benjamin testified, he would have confirmed that he signed the documents. I am satisfied of that fact on the evidence adduced by Bill and Carol without drawing an adverse inference. I also accept Bill and Carol’s evidence that Benjamin knew about the trust from its inception.

[34] There was no obligation on Bill and Carol to turn over the trust assets to Benjamin when he turned 18. The Court ordered that the payments from the annuity go to Bill and Carol. The Court order does not say the trust was to be terminated when Benjamin turned 18. Nor is the termination of the trust when Benjamin turned 18 implicit in the terms of the trust. However, it was open to Benjamin to apply to the Court to collapse the trust and assume control over the annuity payments when he turned 18: Saunders v. Vautier, (1841) 41 E.R. 482. I am satisfied that Benjamin knew about the trust when he turned 18. He chose not to ask for control over the annuity payments until 2016. Bill and Carol were, therefore, required to manage Benjamin’s trust after he turned 18.

[35] I turn now to the assessment of the accounts.

C. Unpaid “Disbursements”

[36] I accept Bill and Carol’s evidence that they were not paid for services they provided to Benjamin or to the trust. All of the following categories of unpaid disbursements, which total $218,670.08, are disallowed.

(a) Case Manager Expenses

[37] A $250 disbursement for case management expenses appears in the account every month between September 2000 and June 2010. For reasons that are not clear, there are two $250 disbursements for case management expenses in December 2000. In total, $29,750 is claimed for case management expenses.

[38] Following his accident, Benjamin’s lawyer retained Jane Staub to assess Benjamin’s future care needs and forecast how much it would cost to meet those needs (“the Staub Report”). The Staub Report recommended that Bill and Carol hire a case manager with experience working with people with head injuries and knowledge of community resources. Dr. Peter Rumney, who was in charge of Benjamin’s rehabilitation at Bloorview MacMillan, also recommended that Benjamin have an independent case manager. According to Dr. Rumney, a case manager would relieve Bill and Carol of the burden of coordinating Benjamin’s services and would provide a level of objectivity in relation to Benjamin’s ongoing needs.

[39] Bill and Carol did not hire a case manager for Benjamin. Carol testified that she acted as Benjamin’s case manager. Carol was a nurse. She testified that her experience as a nurse qualified her to be Benjamin’s case manager. I do not need to decide whether it would have been appropriate for Carol to be paid by the trust to perform services that the Staub Report recommended be performed by a third party because Carol was never paid by the trust to act as Benjamin’s case manager.

(b) Academic Support by Bill and Carol Cochrane

[40] Between September 2000 and June 2002 there are several $1,050 disbursements in the account for academic support by Bill and Carol Cochrane, totaling $21,000. There are other disbursements for third party tutoring, which I deal with separately below.

[41] Carol testified, and I accept, that Benjamin needed much more help with homework than their other children because of his brain injury. Bill and Carol claim they spent six hours a week helping Benjamin with his homework. They charged the trust $43.75 per hour for their academic support. This is the same hourly rate Bill and Carol were charged by Sylvan Learning Centre, a third-party tutoring company, for Benjamin’s academic support before his lawsuit settled.

[42] I do not need to decide whether it would be appropriate for the trust to pay Benjamin’s parents to assist him with homework because Carol testified that she and Bill were never paid for their academic support from the trust.

(c) Supervision Care Expense

[43] The Staub Report noted that Benjamin would likely require ongoing support to make “informed choices on health, financial and personal care issues” and to avoid being unduly influenced by others. The Staub Report estimated that Benjamin would initially require 30 hours of supervision per month and his need for supervision would diminish over time. The Staub Report recognized that the obligation to supervise Benjamin would fall on Bill and Carol. The Staub Report recommended that they be compensated for 30 hours each month at a rate of $18 per hour.

[44] For the first four months of the trust, the monthly “Supervision Care Expense” was $2,160, or four hours of supervision every day at a rate of $18 per hour. From January 2001 to April 2016, the monthly “Supervision Care Expense” was $540, or 30 hours of supervision per month. In total, the monthly “Supervision Care Expense” claims add up to $108,000.

[45] While the Staub Report supports this as an appropriate use of Benjamin’s trust funds, Bill and Carol both testified they were never compensated by the trust for the time they spent supervising Benjamin.

(d) Monthly Bookkeeping Expenses

[46] The Staub Report recommended that funds be provided in the settlement for accounting and bookkeeping services. The Staub Report estimated that 1.5 hours per week of bookkeeping services would be required to properly administer the trust.

[47] Bill and Carol never hired a bookkeeper for the trust. Nor did they keep books for the trust on a monthly basis. Nonetheless, there is a $144.08 disbursement in the Statement of Accounts for bookkeeping every month between September 2000 and May 2017, totaling $28,960.08.

[48] Carol testified that when they prepared the trust accounts in 2017, she contacted BDO Canada and asked how much they would charge for 1.5 hours of bookkeeping for a trust. BDO provided a quote of $144.08 ($127.50 plus HST) for 1.5 hours of bookkeeping services. Bill and Carol used the BDO quote as the basis for each bookkeeping disbursement.

[49] While it would have been appropriate to use Benjamin’s trust funds to hire a bookkeeper, that was not done and trust funds were not used to pay Bill and Carol for bookkeeping services.

(e) Managing Banking Activities

[50] A $100 disbursement for managing banking activities appears in the account every month between September 2000 and May 2017, totaling $20,100. Carol testified that this disbursement was to compensate her and Bill for the time they spent going to the bank each month, transferring the trust funds to other accounts and paying for services for Benjamin.

[51] For the most part, Bill and Carol administered the trust in cash. The monthly payment was deposited automatically into a trust account. For many years, Carol and Bill withdrew the payment in cash each month and spent it as needed. In 2010, Bill opened a joint account with Benjamin. Bill and Carol transferred money from the trust account into the joint account for Benjamin’s use. For a few years, another account was set up to facilitate repayment of Benjamin’s student loans. Bill and Carol deposited $1,000 into that account each month and $1,000 was automatically transferred to the National Student Loan Service Centre. At most, there were a few transfers between accounts each month and otherwise, Bill or Carol simply withdrew the funds in cash.

[52] I do not need to decide whether it would have been reasonable to charge the trust at all for banking activities or whether it would be reasonable to charge the trust $100 each month for the limited banking activities involved in administering Benjamin’s trust. Carol testified that they were never paid by the trust for banking activities, so these disbursements are disallowed.

(f) Driving lessons

[53] Between January 2002 and July 2003, there is a monthly disbursement for $320 for driving lessons, totaling $6,000. Benjamin desperately wanted to get his driver’s licence but had difficulty learning to drive because of his brain injury. I accept Bill’s evidence that it took Benjamin much longer to learn to drive than their other children. I also accept Bill’s evidence that he spent a significant amount of time helping Benjamin learn to drive. However, Bill testified that he never took money from the trust to pay for the driving lessons he gave Benjamin, so these disbursements are disallowed.

[54] Benjamin also took driving lessons with a third party provider and a special driving course at Bloorview MacMillan to help him prepare for the test. I deal with those expenses separately below.

(g) Surety Supervision

[55] There are nine entries in the account between April 15, 2015 and December 15, 2015 for “surety supervision.” Each entry is for $540 each, totaling $4,860.

[56] In April 2015, Benjamin was charged with assault and forcible confinement. Bill agreed to be Benjamin’s surety when he was released on bail. Bill pledged $4,500 as Benjamin’s surety. Bill was never required to pay any of the money pledged because Benjamin was never charged with breaching the conditions of his bail. Nonetheless, Bill and Carol included the amount Bill could have been ordered to pay if Benjamin had breached his bail as disbursements in the account. Bill and Carol also created handwritten receipts for these disbursements:

[57] I am troubled by these entries in the account. It is a criminal offence for a surety to accept any form of indemnity from the person for whom they are acting as a surety: Criminal Code, R.S.C. 1985, c. C-46, s. 139(1)(b). It would arguably have been a criminal offence for Bill to be reimbursed by Benjamin’s trust had he been required to pay any of the money he pledged as Benjamin’s surety. Bill testified that he never received money from Benjamin’s trust to act as his surety. I accept his evidence on this point. Nonetheless, these disbursements should never have been included in the Statement of Accounts.

D. Remaining Disbursements

[58] When the unpaid disbursements are removed from the account, the remaining disbursements total $445,623.28, which is still $26,948.03 more than the trust received between September 2000 and March 2017. To the extent possible, I have considered the remaining disbursements in categories to make the task of assessing the Statement of Accounts more manageable.

(a) Academic Support

[59] There is an entry in the Statement of Accounts for $700 each month between September 2000 and December 2001 for Sylvan Learning Centre, totaling $11,200.

[60] Before Benjamin’s lawsuit was settled, he attended Sylvan for academic support. Bill and Carol produced a document on Sylvan letterhead showing that they paid $700 for Benjamin’s tutoring in April 2000. Bill and Carol also produced certificates showing that Benjamin completed 500 hours of tutoring at Sylvan.

[61] Bill and Carol produced handwritten receipts that purport to be from Sylvan. Each receipt is unsigned and dated the first of the month. During examination-in-chief, Carol testified that she did not create the receipts submitted from Sylvan. She testified that Sylvan provided those receipts to them and they were in her bin of documents. However, on cross-examination, Carol testified that she did create the handwritten Sylvan receipts. I find that Carol created the handwritten “receipts” for the Sylvan disbursements because they are not on Sylvan letterhead (unlike the April 2000 receipt) and they look almost identical to the handwritten receipts Carol admitted she created for the Oxford Learning Centre disbursements. I am troubled by the inconsistency in Carol’s evidence and the fact she created a document to support expenses claimed against the trust. This undermines Carol’s credibility as a witness. It also causes me to carefully scrutinize the authenticity of any handwritten receipts submitted.

[62] Despite my concerns with Carol’s credibility and the authenticity of the receipts submitted, I am satisfied that Benjamin went to Sylvan from September 2000 until December 2001. Benjamin attended Sylvan regularly before the lawsuit settled. Benjamin suffered a serious brain injury that required extensive rehabilitation. Benjamin would have continued to need academic support after the settlement. I accept Bill and Carol’s evidence that Benjamin continued at Sylvan for a period of time after the lawsuit settled and they continued to pay $700 per month for his academic support at Sylvan.

[63] I also allow the disbursements for Benjamin’s transportation to and from Sylvan. Prior to the settlement, the insurance company paid for Benjamin to take a taxi to and from Sylvan. The cost was $13 each way. Bill and Carol produced taxi receipts from the fall of 2000 and January 2001 that confirm Benjamin continued to take a taxi to and from Sylvan after the trust was established.

[64] In total, $11,200 was charged to the trust between September 2000 and December 2001 for Benjamin’s academic support at Sylvan. A further $3,328 was charged to the trust that period for transportation. I am satisfied that these costs were incurred for Benjamin’s benefit and were paid out of the trust. I allow $14,528 in expenses for Benjamin’s academic support at Sylvan.

[65] There are numerous monthly charges for Oxford Learning Centre tuition between January 2002 and May 2010, totaling $35,700. Bill and Carol both testified Benjamin switched to Oxford Learning Centre because it was closer to their home. Carol testified that Benjamin went to Oxford twice a week for two hours when he was in high school. Carol testified that Benjamin continued to go to Oxford periodically when he was attending college for help preparing for exams. Benjamin started college in 2002 and completed his diploma in May 2010.

[66] Each disbursement for Oxford is for $700. Bill and Carol do not have receipts from Oxford. They paid for Benjamin’s tutoring in cash. Carol testified that Oxford was more expensive than Sylvan. Nonetheless, Carol produced handwritten receipts that purport to be from Oxford and purport to show that they paid $700 on the first of each month.

[67] Carol testified that when she was preparing the trust accounts in 2017, she contacted Oxford and was told they no longer had receipts or records for the time frame and location Benjamin attended. She testified that she was told the records had been purged and were no longer available.

[68] Benjamin called the Chief Financial Officer for Oxford Learning Centre, Lynne Killinger, as a witness. Ms. Killinger testified that Oxford does not have any programs of post-secondary education and did not have any program of that sort between 2002 and 2010. Ms. Killinger also testified that if a student came to an Oxford Learning Centre for homework support on a one-on-one basis, the student should have been enrolled in the centralized information management system. Oxford’s information management system has been in place since 2001. Contrary to what Carol said, Ms. Killinger testified that Oxford does have records from 2001 to 2010 but there is no record of Benjamin being enrolled at any Oxford Learning Centre.

[69] There is a record of Benjamin’s sister, Shannon, being enrolled at Oxford in Whitby between 2002 and 2007. Ms. Killinger testified that if more than one child from the same family enrolls at Oxford, their records are linked in the system. There is no reference to Benjamin in Shannon’s record. Ms. Killinger testified that if Benjamin were registered at Oxford, there would be a record for him in the information management system like Shannon and Benjamin’s records would be linked to Shannon’s.

[70] Bill and Carol produced an undated certificate from Oxford congratulating Benjamin for having “moved up a planner and a reading level.” The certificate appears to have several stickers on it. Ms. Killinger testified that she did not recognize the certificate. However, Ms. Killinger testified that the certificate appears to be something that would be used for primary or elementary school students.

[71] On the totality of the evidence, I am not satisfied that Benjamin switched to Oxford in January 2002. The certificate suggests that Benjamin attended Oxford at some point in his life. However, the certificate does not prove that he attended Oxford after his accident. The certificate is undated and it appears to be for a much younger learner. More importantly, the content of the certificate does not match the one-on-one academic support Bill and Carol say Benjamin received after his accident.

[72] The absence of any record in the Oxford information management system of Benjamin attending between 2002 and 2010 is also significant. Institutional and business records are not always accurate or complete. However, there is a record of Shannon attending Oxford from 2002 to 2007, which is the same time frame Bill and Carol say Benjamin was attending. Given the evidence I heard that Bill and Carol did not have a credit card and paid for everything in cash, they would have also paid for Shannon’s tutoring in cash. It seems unlikely that Oxford would create a record for Shannon but not create a record for Benjamin if they were attending at the same time.

[73] I am also troubled by the fact that some of the entries for Oxford cannot be accurate. Carol testified that the entries in the accounts for tutoring after Benjamin finished high school are an estimate based on when he would have needed help for exams. However, there are entries in the account when Benjamin was not in school. For example, there are entries for tutoring at Oxford in January, February, March, April, May, June, July, August and December 2004. Benjamin started at Heritage College in September 2002. He started his second year in September 2003 but left before the first term. Benjamin enrolled at Master’s College in September 2005. Benjamin was not in school in 2004 so the entries for tutoring at Oxford in 2004 must be inaccurate.

[74] As trustees of Benjamin’s trust, Carol and Bill had an obligation to accurately account for how his money was spent. Bill and Carol have not satisfied me that Benjamin attended Oxford Learning Centre after his accident and the disbursements for Oxford from January 2002 and May 2010, totaling $35,700, are disallowed.

(b) Caregiving Expenses

[75] Between September 2000 and June 2002, there are several entries in the Statement of Accounts for caregiver expenses for Barbara Corkery and Shelby Leath, totaling $4,520. Barbara Corkery was Carol’s mother. Bill and Carol both testified that Ms. Corkery would look after Benjamin from time to time to give them a break. Shelby Leath was a high school student.

[76] The Staub Report recommended funding for Bill and Carol to hire someone to supervise Benjamin so they could have some time alone together on a weekly basis. The amount claimed by Bill and Carol is less than estimated in the Staub Report.

[77] Carol and Bill do not have receipts from Shelby Leath because they paid her in cash. Carol testified that before the lawsuit was settled, the insurance company paid Ms. Leath to look after Benjamin. They continued to have Ms. Leath supervise Benjamin after the settlement so they could have a break from time to time. I am satisfied that Bill and Carol used money from the trust to pay Ms. Leath. I also find that these expenses were incurred for Benjamin’s benefit. I allow the $2,520 in disbursements for Ms. Leath between September 2000 and December 2001.

[78] There are ten entries in the account for Ms. Corkery’s caregiving services for $200 each. Bill and Carol submitted a receipt for each entry that appears to be signed by Ms. Corkery:

[79] Ms. Corkery passed away in 2014. Bill identified Ms. Corkery’s signature on the receipts. Carol testified that her mother signed the receipts in 2000 and 2001 when she looked after Benjamin. Carol denied that she created the receipts for Ms. Corkery’s services in 2017 and signed them herself.

[80] I do not need to decide whether Carol fabricated and signed the receipts for Ms. Corkery’s services because I am not satisfied that Ms. Cockery was paid by the trust. Carol testified that before the lawsuit settled, the insurance company paid Ms. Corkery to care for Benjamin. Carol testified that after the lawsuit settled, Ms. Corkery was paid by the trust. Bill testified that he and Carol paid Ms. Corkery personally. He testified that there was not enough money in the trust for them to be reimbursed for the payments to Ms. Corkery. Bill testified they included the disbursements for Ms. Corkery as a notional loan to the trust.

[81] I accept that Ms. Corkery looked after Benjamin from time to time after the accident to give Bill and Carol some respite. Given the inconsistencies between Bill and Carol’s testimony, I am not satisfied that Ms. Corkery was paid by the trust. I find the entries related to Ms. Corkery’s childcare totaling $2,000 are unpaid disbursements and are disallowed for that reasons.

(c) Family Respite

[82] Caring for a child with has a disability requires tremendous emotional and physical effort and can take a significant toll on the caregivers. The Staub Report recommended that funds be provided as part of the settlement to give Bill and Carol respite from caring for Benjamin. The Staub Report included the cost to hire “qualified staff” to look after Benjamin for a week each year so Bill and Carol could get away together.

[83] The Statement of Accounts contains three disbursements for respite: $2,072.09 for a family trip in December 2000, $560 for a vacation that Bill and Carol took in March 2005 and $658 for a vacation that Bill and Carol took in March 2008. The issue for me to decide is whether these trips constitute respite as contemplated in the Staub Report.

[84] Bill and Carol both testified that the family trip in December 2000 was intended as a break for everyone after Benjamin was released from hospital. Bill testified that the trip was recommended by Benjamin’s psychologist and approved by Dr. Rumney.

[85] Dr. Rumney, who cared for Benjamin during his initial rehabilitation at Bloorview MacMillan, testified at trial. Dr. Rumney testified that respite is intended to give caregivers a break from the stress and demands of caring for a person with disabilities. Dr. Rumney testified that he would not consider a vacation with Benjamin as respite for Bill and Carol. Dr. Rumney also testified that funds for “respite support” are not generally used to pay for a vacation. The funds for respite would ordinarily involve paying for alternative care for Benjamin while Bill and Carol were away. Dr. Rumney’s testimony contradicts Bill’s evidence that Dr. Rumney approved the family trip as a form of respite. I find that the family vacation in 2000 is not “respite” because it did not give Bill and Carol a break from caring for Benjamin. The expenses related to this trip are disallowed

[86] The second and third trips were not family vacations. They were trips taken by Bill and Carol on their own in 2005 and 2008. By March 2005, Benjamin was almost 21 years old. In 2008, Benjamin turned 24 years old and was attending college. Dr. Rumney testified that he would not have recommended respite services for Bill and Carol once Benjamin was living independently and no longer required daily supervision and care. In light of Dr. Rumney’s evidence, I am not satisfied that it was appropriate to use Benjamin’s trust funds to pay for respite for Bill and Carol after Benjamin left home for college in 2002 and was more independent.

[87] I disallow all the disbursements related to the three trips.

(d) Maple Creek Ranch

[88] The Staub Report recommended that money be provided to pay for Benjamin to attend Maple Creek Ranch during the summer and school holidays. Maple Creek is a Christian horse ranch north of Lindsay. The Staub Report noted that Benjamin enjoyed spending time at Maple Creek Ranch and it helped him develop feelings of self-worth. Bill said that being around the horses was a form of therapy for Benjamin. The Staub Report also recognized that the family would also benefit from Benjamin going to camp because they would get some respite while he was away.

[89] Benjamin was a camper at Maple Creek for a few years. When Benjamin was too old to be a camper, Bill and Carol approached the owner and asked if Benjamin could work there. Bill testified that working at Maple Creek gave Benjamin a break from the constant supervision he was under while at home and school. It also gave Benjamin a sense of independence he did not have at home. Bill and Carol testified that Benjamin worked at Maple Creek twice a month during high school and in the summer of 2000 after he finished grade 12.

[90] There are several entries in the account for expenses related to Maple Creek Ranch totaling $4,026.12.[^2] The disbursements for Maple Creek cover the cost of driving Benjamin to and from Maple Creek, clothes and equipment and spending money at the Ranch. Bill and Carol charged the trust $80.88 each month for travel expenses. They charged the trust $150 twice a year for clothes and equipment. Carol testified that they bought Benjamin anything he needed to work at Maple Creek and reimbursed themselves from the trust. They do not have receipts for the clothes and equipment they bought. Carol testified that the $150 entries are estimates of what they spent. Finally, Bill and Carol charged the trust $40 per month for spending money for Benjamin at Maple Creek.

[91] I am satisfied that most of the expenses related to Maple Creek Ranch were paid out of the trust for Benjamin’s benefit. These expenses are consistent with the spirit of the recommendations in the Staub Report. The Staub Report recommended that money be provided to pay for Benjamin to attend camp at Maple Creek Ranch and to complete their leader-in-training program once Benjamin was too old to be a camper.

[92] There are two expenses related to Maple Creek that I disallow. First, there are entries in the account in both August 2000 and September 2000 for $150 clothes and equipment for Maple Creek. These appear to be duplicates so one is disallowed. Second, there is a $300 disbursement in August 2002 for an “end of season pool party.” Bill testified that they hosted a party for Benjamin and the other staff from the camp. In my view, this is not an appropriate expense to charge to Benjamin’s trust. Benjamin was only 18 years old at the time. Bill and Carol agreed to host the party and they should cover the expenses personally. Otherwise, I am satisfied that $3,576.12 of Benjamin’s trust funds were used to pay for travel and expenses related to his job at Maple Creek Camp.

(e) Guitar Lessons

[93] There are monthly expenses in the Statement of Accounts for guitar lessons at Long & McQuade from September 2000 until August 2002 while Benjamin was in high school. There is also a $250 disbursement for the purchase of a guitar in September 2000. These disbursements total $4,666.

[94] Bill testified that Benjamin played the drums as a form of therapy when he was at Bloorview MacMillan after his accident. When Benjamin was released from hospital, they wanted him to continue with music lessons as a form of therapy but did not want drums in the house, so they bought him a guitar. It was suggested to Bill that he and Carol gave Benjamin the guitar as a Christmas gift. Bill denied this suggestion. He testified that they purchased the guitar based on Dr. Rumney’s recommendation that Benjamin continue some form of music therapy when he was released from hospital. Carol testified that they bought Benjamin several guitars over the years.

[95] Bill and Carol both testified that Benjamin took guitar lessons once a week. The entries in the account for Benjamin’s guitar lessons are based on a rate of $46 per hour. They did not keep receipts for Benjamin’s guitar lessons. When Carol was preparing the accounts in 2017, she got an estimate from another music store about how much a one-hour lesson would have cost in 2000.

[96] Notwithstanding the lack of supporting documentation, I accept Bill and Carol’s evidence that they bought Benjamin a guitar and paid for his weekly guitar lessons with money from the trust. I find that these expenses were appropriate and for Benjamin’s benefit. I, therefore, allow the $4,666 in expenses claimed for Benjamin’s guitar and lessons.

[97] There is a $366.85 disbursement dated September 9, 2000 for “Wilson & Lee Music Store re Records and CDs.” Carol testified that these items were bought for Benjamin. The receipt from Wilson & Lee Music Store is actually dated January 5, 2004 and says it is for a karaoke machine and CDs. Given the discrepancies between the entry in the account and the information on the receipt, I am not satisfied that this expense is related to Benjamin’s guitar lessons or that these items was purchased for Benjamin. I, therefore, disallow the $366.85 expense for Wilson & Lee Music Store.

(f) Other Activities During High School

[98] There are several disbursements from 2000, 2001 and 2002 for snowboarding expenses (equipment, helmet and season passes to local resorts).[^3] These expenses total $1,705. Bill and Carol do not have receipts for these expenses. Nonetheless, I am satisfied that Bill and Carol used Benjamin’s trust money to pay these expenses. Bill testified that they did not pay these sorts of expenses for their other children. I accept that these expenses go beyond what parents are expected to pay personally and were for Benjamin’s benefit.

[99] Finally, there are disbursements for church camps, school activities, and high school graduation totalling $929.19.[^4] Bill and Carol produced documentation to confirm that Benjamin participated in some of these activities. Bill and Carol also produced duplicate cheques drawn on their personal account for some of the school-related activities and for Benjamin’s graduation photos. I am satisfied that Benjamin participated in the activities for which expenses are claimed. I am also satisfied that Bill and Carol paid for the activities and graduation photos. However, I am not satisfied that Bill and Carol were reimbursed for these expenses from the trust. I also find that these are the sorts of expenses that parents are expected to pay personally for their children and I disallow $929.19 in disbursements.

(g) Psychological Services for Ken Cochrane

[100] There are three entries in the Statement of Accounts for psychological services for Benjamin’s brother, Ken, totaling $630.

[101] Bill and Carol have three children in addition to Benjamin. Jason is one year older than Benjamin. He was 13 at the time of Benjamin’s accident. Ken is one year younger than Benjamin. He was 11 years old at the time of the accident. Shannon is six years younger than Benjamin. She was just six years old at the time of the accident.

[102] Benjamin’s accident had a profound impact on his whole family. Jason testified at the trial and described how Benjamin’s accident changed his life. He and Benjamin were close before the accident but Benjamin was a different person after the accident. Their parents were focused entirely on Benjamin after the accident and did not have time for the other kids. Jason resented the attention Benjamin was getting and rebelled. He dropped out of school and moved out when he was just 15 or 16 years old.

[103] Bill testified that Jason and Ken both struggled after Benjamin’s accident because he and Carol were devoting all their time and attention to Benjamin. Jason and Ken both saw a psychologist, Dr. Ammons, after Benjamin’s accident. The insurance company paid for Jason’s sessions with Dr. Ammons before Benjamin’s lawsuit settled. The entries in the account are for Ken’s sessions.

[104] I accept Bill, Carol and Jason’s evidence about the impact of Benjamin’s accident on their family. This was obviously a traumatic event for everyone. The Staub Report recommended family and individual counselling to help the family overcome their difficulties and understand Benjamin’s deficits. It was hoped that individual counselling would teach Benjamin’s brother how to interact with Benjamin and support him. I find that the expenses claimed for psychological services for Ken are appropriate and were for Benjamin’s benefit. These claims are allowed.

(h) Monthly Fax

[105] The Statement of Accounts contains a $6.78 disbursement for fax expenses each month from September 2000 to May 2017. The fax expenses amount to $1,362.78. Carol testified that they bought a fax machine and had a fax line installed after Benjamin’s accident. She testified that they used the fax line for trust related business including sending and receiving medical and other reports related to Benjamin. Carol testified they discontinued the fax line when Benjamin took over the annuity himself in May 2017.

[106] In support of each entry for fax expenses, Bill and Carol adduced a Rogers’ bill from February 2017 that shows a $6 charge for a fax line (plus tax). I accept Carol’s evidence that they installed the fax line in the house to help manage issues related to Benjamin’s accident, his lawsuit, his rehabilitation and the administration of the trust. I find that this is an appropriate expense to charge the trust and these disbursements are allowed.

(i) Heritage College Tuition and Expenses

[107] After graduating from high school, Benjamin enrolled at Heritage College in Cambridge, Ontario, in September 2002. Benjamin returned to Heritage College in September 2003 but did not finish his second year.

[108] There are entries in the accounts totaling $6,561.52. for fees and tuition for Heritage College There are two disbursements for tuition. The others are for miscellaneous fees. In support of the Heritage College tuition disbursements, Bill and Carol adduced two invoices from Heritage College, two T2202A Tuition and Education Amount Certificates and photocopies of two uncashed cheques payable to Benjamin.

[109] The tuition expenses in the account are puzzling. They do not correspond with the invoices issued by Heritage College. Rather, they track the amounts in the T2202A Tuition and Education Amounts Certificate issued by the government.

[110] The first tuition expense in the Statement of Accounts for Heritage College is dated September 1, 2002 for $2,679.80. The account says this is for Benjamin’s tuition from September to December 2002. Heritage College issued an invoice to Benjamin on September 3, 2002 for $4,695.20 for his course fees, residence, meal plan and student fees. Benjamin’s course fees were $2,880. The invoice suggests that Benjamin had paid a $500 deposit. The $4,695.20 invoice amount does not appear in the Statement of Accounts, nor does the $500 deposit. Rather, the account reflects the amount on Benjamin’s 2002 T2202A, which shows he paid $2,679.80 in tuition to B.R.E. Church Ministry between September and December 2002.

[111] Even more puzzling is the uncashed cheque Bill and Carol produced to support the $2,679.20 tuition expenses on September 1, 2002. The cheque is dated September 1, 2002 and is payable to Benjamin Cochrane in the amount of $2,679.80. The cheque was written on Bill and Carol’s personal account. The note on the cheque reads, “Heritage Baptist College Tuition Sept 2002 – Dec 2002.” No explanation was given for why the cheque is for a different amount than the September 3, 2002 invoice from Heritage College. Bill and Carol did not adduce evidence that the cheque was ever cashed.

[112] The second tuition expense in the Statement of Accounts is dated January 1, 2003 for $3,109. This entry appears to be for Benjamin’s tuition from January to December 2003. Bill and Carol produced another uncashed cheque dated January 1, 2003 payable to Benjamin in the amount of $3,109 with a note that it is for “Heritage Baptist College Tuition from Jan to Dec 2003.” This cheque was also written on Bill and Carol’s personal account.

[113] Benjamin’s 2003 T2202A confirms that he paid $3,109 in tuition in 2003: $1,800 between January and April 2003 and $1,309.00 between September and December 2003. It was suggested to Carol in cross-examination that she must have relied on Benjamin’s 2003 T2202A when she wrote the cheque for $3,109. She denied this suggestion. It was also suggested to her that she fabricated the $3,109 cheque in 2017 to support the tuition disbursement in the account. Carol took great exception to that accusation. She maintained that she wrote the cheque and gave it to Benjamin in January 2003.

[114] I do not accept that Carol wrote the cheque for $3,109 in January 2003. The note on the cheque says it was for Benjamin’s 2003 tuition. Neither Carol nor Benjamin could have known on January 1, 2003 what Benjamin’s tuition would be for the full year. Heritage College billed its students each term. Benjamin would not have known what his tuition would be for the 2003 Fall term when Carol purportedly wrote the cheque on January 1, 2003. If Benjamin owed any fees or tuition in January 2003, it would have been for the 2003 Winter term only (which would have ended in April or May 2003). However, the cheque does not correspond with invoice Heritage College issued to Benjamin on January 13, 2003 – 12 days after Carol claims to have written the cheque. The invoice was for $3,525.20 for his course fees, residence, meal plan and student fees. Benjamin’s course fees for the 2003 Winter term were only $1,800. The $3,525.50 figure does not appear anywhere in the Statement of Accounts, nor does the $1,800 in course fees.

[115] The Benjamin’s 2003 T2202A is the only document that contains the $3,109 figure that appears on the January 1, 2003 cheque. But Carol would not have had Benjamin’s T2202A in January 2003 when she claims to have written the cheque. That document would not have been issued until early 2004 for Benjamin to use when filing his 2003 taxes. The same is true of the cheque dated September 1, 2002 for $2,679.80. That figure must have come from Benjamin’s 2002 T2202A. Carol would not have had that document in September 2002 when she claims to have written the cheque to Benjamin for his tuition.

[116] I find that Carol wrote the two cheques when she was preparing the trust accounting in 2017, not in 2002 or 2003. I find that Carol fabricated this evidence in an effort to substantiate the tuition expenses claimed for Heritage College. This fabrication significantly undermines Carol’s credibility and causes me to question the authenticity of any document she and Bill created to support the trust accounting.

[117] Benjamin had little or no income in 2002 and 2003. However, in June 2002, when he turned 18, Benjamin received $40,000. After the accident, Bill and Carol brought a civil lawsuit on Benjamin’s behalf against the driver who hit him. That lawsuit settled in 1998 for $40,000, which was paid into court and held in trust for Benjamin until his eighteenth birthday. Benjamin turned 18 in June 2002 just as he was finishing high school and the $40,000 settlement was paid out to him.

[118] Bill testified that Benjamin did not use any of the $40,000 to pay for college. Bill’s evidence on how Benjamin spent the $40,000 settlement and who paid his tuition was internally inconsistent. At first, he testified that Benjamin spent some of the $40,000 on mission trips and snowboarding and gave the rest away to people on the street. Later, Bill testified that Benjamin had $25,000 of the original settlement left after a year and a half and Benjamin asked him to assume control over the remaining funds.

[119] To add to the confusion, Bill also testified that General Motors paid for Benjamin’s tuition at Heritage College. Bill worked for General Motors as a skilled tradesperson. One of his benefits was that General Motors would pay for his children’s tuition at college or university. Bill and Carol produced two forms that Bill submitted to General Motors in 2002 and 2003 confirming that Benjamin was eligible for the tuition benefit program.

[120] I find that Benjamin had the ability to pay for his expenses at Heritage College himself. He was eligible for the tuition benefits through General Motors and he had access to the settlement funds. Benjamin did not need funds from his trust to pay for his tuition.

[121] The onus is on Bill and Carol to establish that trust funds were used to pay for Benjamin’s tuition at Heritage College. Having found that the documents submitted to support the tuition expenses are fake and that Benjamin had other means to pay his tuition in 2002 and 2003, I am not satisfied the trust paid Benjamin’s tuition and the disbursements for Heritage College are disallowed.

(j) Computer Expenses

[122] There are several disbursements in the accounts for computer-related expenses.[^5] There are two in late October and early November 2004 for a computer and a monitor purchased at Staples, totaling $1,644.42. There is another disbursement for Staples from early December 2004 for a printer, ink and cables totaling $336.76. There is another disbursement for Staples in January 2005 for $45.99 for “High School Advant”. Carol testified that this was a software package for Benjamin’s computer. Finally, there are two entries for MDG Computer Best from April 2005 totaling $207. The receipts note that they were for “software configuration.” Bill testified that they bought the computer, monitor, printer and software for Benjamin for school. Carol also testified that all these items were purchased for Benjamin.

[123] Benjamin was not in school in November 2004. He left Heritage College sometime during 2003/2004 academic year and did not start Master’s College until September 2005. It was suggested to Carol in cross-examination that this computer and printer were not purchased for Benjamin because he was not in school at that time. It was also suggested to Carol that the High School Advant software was purchased for Shannon, who would have been in high school in 2004 and 2005. Carol denied that these items were purchased for Shannon; she testified they were all purchased for Benjamin. She testified that Benjamin intend to continue his education after he left Heritage College.

[124] With the exception of the High School Advant software, I accept Carol’s evidence that Benjamin intended to go back to school after he left Heritage College. I accept that the computer equipment and software were for Benjamin and are appropriate expenses. I allow $2,188.18 of the $2,234.17 claimed.

[125] There is another disbursement for $1,179.75 in August 2007 for a laptop. Bill testified that Benjamin needed a laptop for school. Carol also testified that they bought the laptop for Benjamin using his trust money. I accept Bill and Carol’s evidence that they bought Benjamin a laptop for school. I find this is an appropriate expense and it is allowed.

(k) Master’s College Tuition and Expenses

[126] Benjamin enrolled at Master’s College in September 2005. He graduated with a Ministerial Diploma in April 2010. There is only one disbursement in the account for tuition for Master’s College in 2010 for $1,452.36. In support of this expense, Bill and Carol produced a receipt from Master’s College dated January 7, 2010 and an email from the Registrar of Master’s College dated December 23, 2009 confirming the tuition owing for Benjamin’s courses Benjamin for the 2010 Winter semester.

[127] During the years that Benjamin was attending Master’s College his income was negligible. In 2005, Benjamin’s declared income was $2,211. In 2006, his declared income was $4,338. In 2007, his declared income was only $1,150. In 2008, his declared income was $6,056. He had no declared income in 2009. In 2010, the year he graduated from Master’s College, Benjamin declared income was $9,370.

[128] Benjamin received government student loans while attending Master’s College in the amounts shown below:

Year	Amount received	Portion remitted directly to Master’s College
2005/2006	$1,200	$1,200
2006/2007	$1,200	$1,200
2007/2008	$6,300	$2,256
2008/2009	$3,150	$2,316
2008/2009	$2,100	$0

[129] Benjamin also received a government loan and a grant for the 2009/2010 academic year. The amount of the loan and grant is not legible on documents filed. It is, however, clear that the National Student Loan Service did not remit any money to Master’s College on Benjamin’s behalf that year.

[130] Benjamin also received a $1,200 loan in January 2010 directly from Master’s College.

[131] Given how little Benjamin earn while at Master’s College and none of his loan in 2010 was remitted to Master’s College, I am satisfied that the trust paid $1,452.36 for tuition and fees at Master’s College in 2010.

[132] There are three disbursements for books during this period: two in May 2006 totaling $92.55[^6] and one in January 2010 in the amount of $121.76.[^7]

[133] Bill and Carol produced receipts from Mitchell Retail in Oshawa dated May 11, 2006 and May 19, 2006 for several religious books. I am not satisfied that these books were for Benjamin. The 2005/2006 academic year would have ended by May 2006. According to Benjamin’s academic transcript, he did not take any courses in the summer of 2006. No evidence was adduced to explain why Benjamin would have needed books for college during the summer break. I, therefore, disallow the two disbursements from May 2006 totaling $92.55.

[134] Bill and Carol produced an online receipt for $121.76 for several textbooks that were ordered by and shipped to Kellen Wiersma in January 2010. Bill testified that a student at the college ordered the books for Benjamin because he did not have a credit card and they gave Benjamin money from the trust to reimburse her. Bill was wrong when he said Benjamin did not have a credit card at that time. In January 2010, Benjamin had at least three credit cards. But Benjamin had not been paying his credit card bills and asked Bill and Carol to help. Starting in October 2009, the trust made regular payments on Benjamin’s credit cards. I accept that Benjamin was not in a position to use one of his credit cards to make online purchases in January 2010. I accept Bill’s evidence that one of Benjamin’s classmates bought books for him and the trust gave him money to reimburse her. I, therefore, allow the $121.76 disbursement from January 23, 2010.

(l) Credit Card Payments

[135] Between October 2009 and July 2013, there are several entries in the account, totaling $16,184.91, for “credit card expenses” related to four different credit cards.[^8]

[136] Bill and Carol both testified that they did not know Benjamin had applied for these credit cards. Carol testified they only found out that Benjamin had credit cards when there was a problem. She testified that Benjamin gave them the bills and they used cash from the trust funds to pay them.

[137] Receipts were produced confirming all the credit card payments except the entry on July 19, 2013 for “TD Visa Credit Card Expenses” in the amount of $5,021.89. Bill and Carol produced a credit card statement dated June 24, 2013 for Benjamin’s TD Emerald credit card showing a balancing owing of $5,021.89. The payment due date on the statement was July 19, 2013. No documentation was produced to confirm the balance was paid. Carol testified that Bill made all the payments in cash. Bill testified that he and Carol used Benjamin’s trust funds to pay off the outstanding balances.

[138] Based on the receipts produced, I am satisfied that $11,163.02 of Benjamin’s trust money was used to pay his credit card debts. I am not satisfied that the TD Emerald card was paid off using trust funds in July 2013. Throughout 2013, $1,000 of each annuity payment was used to repay Benjamin’s student loans. The trust was only receiving $1,520.96 per month in the spring and summer of 2013. The trust was not receiving enough money to make a $5,000 payment in July 2013 in addition to the other expenses claimed. While I accept that Bill and Carol likely helped Benjamin pay his TD Emerald credit card bill, I am not satisfied they were reimbursed by the trust for the payments.

[139] I, therefore, allow $11,163.02 in credit card expenses from the trust and disallow $5,021.89.

(m) Student Loan Repayment

[140] Between May 2011 and May 2014, there are several entries in the Statement of Accounts for “student loan payment” that total $29,353.80.

[141] In total, Benjamin received over $25,000 in government loans and bursaries. Benjamin also received a $1,200 loan directly from Master’s College. Bill and Carol both testified that they did not know that Benjamin had applied for student loans while he was in school.

[142] Carol testified that they learned about the $1,200 loan from Master’s College in the spring of 2010 because Benjamin could not graduate until it was repaid. Bill testified that they repaid that loan on Benjamin’s behalf using funds from the trust. There is an entry in the Statement of Accounts for student loan repayment from April 4, 2010 for $1,200.[^9] Bill and Carol produced a duplicate of a cheque dated April 4, 2010 payable to Master’s College and Seminary for $1,200. The note on the cheque reads, “Walter and Margaret McKay Loan.” I am satisfied that this student loan payment is an appropriate disbursement from the trust and is allowed.

[143] An initial payment of $309.62 was made towards Benjamin’s government student loans in May 2011. In December 2011, Bill and Carol arranged to pay $1,000 per month until the loan was fully repaid. A separate bank account was opened to facilitate the payments. Each month, Bill and Carol deposited $1,000 into the new bank account and each month $1,000 was automatically transferred to the National Student Loan Service Centre. A final payment of $1,043.58 was made on April 30, 2014. The bank records for the account used to repay Benjamin’s student loans confirm the monthly deposits in and monthly transfers out. A statement was produced from the National Student Loan Service Centre confirming the monthly payments in 2011, 2012 and 2013. A letter dated May 9, 2014 confirmed that Benjamin’s student loan had been paid in full.

[144] Benjamin argues that the disbursements for paying off his student loans should be disallowed because his parents did not establish that he needed student loans during college. Carol agreed that Benjamin did not need to apply for student loans. She testified that they were paying his expenses from the trust funds while he was at college. While Benjamin may not have needed to apply for student loans, it is clear he did. I accept Bill and Carol’s evidence, which is corroborated by the bank records, that they used money from the trust to pay off Benjamin’s loan. I allow $30,553.80 for repayments of Benjamin’s student loans. It was in Benjamin’s interest to pay off his student loans and this is an appropriate disbursement from the trust.

(n) Moving Expenses

[145] There are nine entries in the Statement of Accounts for $800 for “moving expense” between September 2002 and February 2015.[^10]

[146] Bill and Carol both testified that they helped Benjamin move several times. Carol testified they incurred costs for packing material to ensure Benjamin’s belongings and furniture did not get damaged during the move. Bill testified they also paid for gas for each move. Bill and Carol both testified that they paid for the moving expenses in cash using money from Benjamin’s trust.

[147] There are no receipts for any moving costs. Carol testified that when they were preparing the trust account, they asked their son, Jason, who owns a moving company, to estimate how much it would have cost to move Benjamin’s belongings. Jason gave them a quote of $800. Bill and Carol used Jason’s estimate for each disbursement related to Benjamin’s moves.

[148] I accept that Bill and Carol helped Benjamin move several times. But I am not satisfied that they spent $800 on each move. They are not entitled to charge the trust what it would have cost to hire a third party to move Benjamin’s belongings. As trustees, they are only entitled to charge the trust for the actual expenses. I disallow the moving expenses claimed in the Statement of Accounts, which total $7,200.

(o) Car Expenses

[149] Benjamin had difficulty passing the driver’s test because of his brain injury. Benjamin took driving lessons in the fall of 2000. He then took the provincial driving test twice but failed. Bill and Carol produced two receipts from Provincial Driving School totaling $361.[^11]

[150] After Benjamin’s unsuccessful attempts to get his licence, Dr. Rumney recommended Benjamin take a special driving program offered at Bloorview MacMillian. The driving program cost $1,300 plus a $125 fee for an in-vehicle evaluation. Benjamin took a few more lessons after the evaluation, which cost a further $170.

[151] Benjamin’s licence application fee and G1 exit exam fee were also charged to the trust.

[152] I am satisfied that the expenses related to Benjamin’s driving lessons and the licensing process, which total $1,956, were incurred for his benefit and were properly paid by the trust.

[153] Benjamin got his driver’s licence in July 2003 and immediately bought a car. Unfortunately, Benjamin had several accidents and had to replace his vehicles. Photographs were filed of some of Benjamin’s cars that document the damage from some of his accidents. According to the Statement of Accounts, trust funds were used to buy Benjamin seven vehicles.[^12] In total, $14,654.50 was charged to the trust for vehicles and related safety checks.

[154] The first entry is in July 2003 for $4,000 for the purchase of a Pontiac LeMans. Bill testified that this was Benjamin’s first car. A photograph of Benjamin with the car was filed as an exhibit. The next entry is in August 2003 for $2,500 for a Pontiac Sunfire. Bill testified that Benjamin had an accident in the LeMans shortly after he got his licence so they bought him a replacement vehicle with money from the trust. In 2004, Benjamin bought a Chevrolet Cavalier for $2,200. In May 2005, he bought a Saturn for $2,000. In 2009, he bought a Chevrolet S10 truck for $400. In 2013, he bought a Chevrolet Blazer for $400. Finally, in 2016, Benjamin bought a Dodge Dakota for $2,000. Bill and Carol produced a handwritten receipt dated April 8, 2016 for $2,000 for “the purchase of another vehicle.” Bill identified Benjamin’s signature on the receipt.

[155] Bill and Carol both testified that they used Benjamin’s trust funds to buy each of Benjamin’s vehicles. I accept their evidence on this point. I find that Benjamin was not in a position to buy new cars without money from his trust account. According to Benjamin’s tax returns, he had little or no income until 2010. For example, Benjamin only earned $3,898 in 2004. His Chevrolet Cavalier cost more than half of his total annual income that year.

[156] Benjamin chose not to testify, which was his right. However, I do not have any evidence from him to contradict Bill and Carol’s testimony that his trust money was used to pay for his vehicles. The evidence about Benjamin’s income supports Bill and Carol’s testimony on this point. I am, therefore, satisfied that all of Benjamin’s vehicles were purchased with money from the trust and these disbursements were in his interest. The disbursements totaling $14,654.50 for vehicle purchases and safety checks are allowed.

[157] There are three towing charges totaling $379.86 in the account. There are also three Highway Traffic Act fines from July 2003, May 2004 and May 2015 totaling $440.00. Given the evidence I heard about the challenges Benjamin had learning to drive and his accidents, I am satisfied that these additional disbursements were paid out of the trust and were appropriate. I allow these expenses, which total $819.86.

[158] There is a recurring $200 entry in the account each September from 2003 until 2015 for “vehicle maintenance expenses”. The Statement of Accounts says that these charges are for “brakes” and “oil change.” The account says Bill spent $200 on parts and did the maintenance work himself. Bill testified that he did a lot of work on Benjamin’s vehicles. He did more than fix the brakes and changing the oil. He replaced the rooters. He changed the oil filters. He replaced the signal light switch on one of Benjamin’s cars. Bill testified he could not remember how much he actually spent on all the repairs.

[159] There is an entry for $500 for work Bill did on Benjamin’s Chevrolet truck in June 2012 after one of Benjamin’s accidents. Bill testified he fixed the fender and replaced the wheels. Bill created and signed an invoice for this disbursement. The receipt says the $500 was for parts and labour. There are no receipts for any parts.

[160] I heard conflicting evidence about whether Bill was paid for any of parts he bought for Benjamin’s vehicles. Bill testified that Benjamin could not afford to pay for the parts so he would buy what was needed. Bill testified that the recurring entries for vehicle maintenance were put in the account as a loan because Benjamin could not pay for the parts. On the other hand, Carol testified that Bill took money from the trust to pay for the parts but was not reimbursed for his labour.

[161] I accept Bill’s evidence that he often helped fix Benjamin’s cars. However, I am not satisfied the annual maintenance expenses, which total $2,600, were paid out of the trust. I am also not satisfied that Bill was paid $500 for parts and labour to fix Benjamin’s truck in 2012. Given the concerns I have with Carol’s credibility, I prefer Bill’s testimony over hers. I accept Bill’s evidence that he did not take money out of the trust to pay for the parts he bought. I accept his evidence that the recurring “vehicle maintenance expenses” were included in the account to offset any amount they may be required to repay the trust. The annual “vehicle maintenance expenses” and the June 2, 2012 disbursement for work done on Benjamin’s truck are disallowed for the same reasons I disallowed the other unpaid disbursements.

[162] Bill and Carol produced receipts for other car repairs and maintenance, totaling $4,503.49.[^13] One of the receipts is from Benjamin’s brother, Ken, for $600. Ken is a car mechanic. Bill testified that Benjamin had a serious accident in May 2015. Bill arranged for Ken to fix Benjamin’s truck. Bill testified that he gave Ken $600 out of Benjamin’s trust to pay for the parts and his labour. The receipt from Ken says he received $600 in cash from Bill and Carol. I am satisfied that the receipts produced, including the receipt from Ken, are for parts or services for Benjamin’s car. I am also satisfied that these items were paid for by the trust and these disbursements are appropriate.

[163] In total, I allow $21,933.85 in car related expenses.

(p) Car Insurance

[164] There is an entry in the account for car insurance every month from July 2003, when Benjamin first got his licence, until March 2016, when Bill and Carol started to give the full annuity payments to Benjamin each month. The amount claimed for insurance totals $61,452.97.

[165] In each of August, September, October, November and December 2003, there are two entries for $300 each for insurance. I find these are duplicates and disallow $1,500 in insurance expenses.

[166] Bill and Carol both testified that Benjamin could not afford to pay his insurance himself, so they gave him money each month to pay his insurance. The amount claimed for insurance each month changed over time. Carol was asked how they came up with the amounts included in the account for insurance. Carol testified that the entries are estimates based on the documents they still had when they prepared the account.

[167] From July 2003 to August 2004, the trust was charged $300 per month for insurance through The Co-operators Insurance. The amount increased to $342.51 in September 2004. Bill and Carol produced a “Notice of Change” from The Co-operators, which states that Benjamin’s monthly insurance was increasing to $342.51 effective September 1, 2004. Carol testified she used this document to estimate Benjamin’s insurance payments before September 1, 2004.

[168] According to the Statement of Accounts, Benjamin switched to Echelon General Insurance in April 2005. Carol testified that The Co-operators refused to insure Benjamin after he had several accidents. Benjamin had to find an insurance company that would insure him as a “high risk” driver. From April 2005 to June 2012, the monthly disbursement for insurance is $400. From July 2012 to June 2013, the trust was charged $500 per month for car insurance through Echelon.

[169] According to the accounts, Benjamin switched to Perth Insurance in July 2013. In July 2013, the trust was charged $790 for first and last month insurance payments. A duplicate cheque payable to Ben Cochrane in the amount of $790 was filed as an exhibit. The note on the cheque reads “Insurance (Blazer) First & Last months”. From August 2013 to December 2013, the trust was charged $395 per month for Benjamin’s insurance. However, a statement was filed from Perth Insurance dated July 25, 2013, which states that Benjamin’s monthly premiums would be $341.40 the following year.

[170] The insurance expenses dropped to $192 in January 2014 and continued at that rate until July 2015. An “Account Inquiry” document from Perth Insurance suggests that Benjamin’s monthly payments were actually $344.85 from October 2013 until June 2014, not $192. In other words, the amount claimed in the account between January and June 2014 is less than what Benjamin was paying.

[171] An email from All-Risks Insurance confirms that Benjamin was paying $192 per month for his 2014-2015 insurance policy. The email also says that Benjamin’s last payment of $192 would be in September 2015. The evidence does not establish when Benjamin started paying the reduced rate of $192 per month.

[172] Benjamin switched to All-Risks Insurance in August 2015. The trust was charged $658 per month for his insurance until March 2016. Bill and Carol produced an email dated August 19, 2015 from All-Risks with a quote of $658 per month for a new insurance policy. The email says that Benjamin was required to pay $1,314 to initiate the new policy. Bill and Carol produced a duplicate cheque dated August 21, 2015 payable to Ben Cochrane for $1,314. The note on the cheque reads, “All-Risk Insurance First and Last Months Insurance.”

[173] I am satisfied that Benjamin was given money from the trust to pay his insurance until April 2015. It was important to Benjamin to get his licence. Having a car allowed Benjamin to be independent. However, for many years Benjamin was not making enough money to cover his monthly insurance premiums. The available documentation confirms many of the amounts claimed for insurance in the account. The available documents also show that Benjamin’s insurance costs were at times higher than what was charged to the trust.

[174] I am not satisfied the trust paid Benjamin’s insurance between April 2015 and March 2016. In April 2015, Bill and Carol started saving money in the trust. Between April 2015 and April 2016, the trust account accumulated more than $7,000. The money saved was given to Benjamin as a lump sum in April 2016. Between April 2015 and April 2016, a further $600 was deposited into Bill and Benjamin’s joint account each month for Benjamin’s use. The trust only was receiving approximately $1,600 per month during this time.[^14] There was not enough trust income between April 2015 and April 2016 to pay Benjamin’s car insurance as well. I disallow the $6,575.10 in insurance expenses during this period.[^15]

[175] I accept that $53,377.87 of Benjamin’s trust money was used to pay for his car insurance. I also find that those payments were for his benefit.

(q) Laundry, Grocery and Gas

[176] There is an entry in the account every month from September 2002 to March 2016 for $125 for “Monthly Attendant Care Cost re laundry and groceries,” totaling $20,375. The note in the account says $100 is for groceries and $25 is for laundry. There is also a disbursement in the account every month for $150 for “Monthly Gas Expenses” from July 2003, when Benjamin got his driver’s licence, until March 2016, totaling $21,750. Bill and Carol do not have receipts to support any of these entries. Bill and Carol acknowledged that the entries for groceries, laundry and gas are estimates of what they spent on those items for Benjamin over the years.

[177] In terms of grocery expenses, Bill testified that they often bought groceries for Benjamin. He testified that they would stock his fridge and cupboards with food so he would eat properly. Carol testified that they bought groceries for Benjamin about once a month. She testified that they would have spent more than $100 per month on groceries for Benjamin.

[178] Bill and Carol both testified that Carol would often do Benjamin’s laundry, even when he was living on his own. Benjamin would bring his laundry home when he came to visit. Carol did not charge for her time to do Benjamin’s laundry; the $25 disbursement was for supplies.

[179] I heard conflicting evidence about whether these disbursements were actually paid out of the trust. Bill testified that there was not enough money in the trust to reimburse them each time they bought groceries for Benjamin. Bill testified the monthly $125 disbursement was included in the Statement of Accounts to offset any amount they might be ordered to repay. On the other hand, Carol testified they would reimburse themselves for groceries and laundry supplies, but not all the time.

[180] I also heard conflicting evidence about what the $100 “monthly gas expenses” is for. Carol testified these charges are an estimate of the cash gave Benjamin for gas. Carol testified there are no receipts for these expenses because Benjamin did not give them receipts for the gas he bought. On Carol’s version, these disbursements were paid out of the trust in cash to Benjamin. However, Bill testified the “monthly gas expenses” are the money that he and Carol spent on gas for their car to drive Benjamin to various places and appointments. Bill testified that there was not enough money in the trust to reimburse them for their gas expenses but they included the monthly gas charge to offset any amount they might be ordered to repay the trust.

[181] I accept Carol and Bill’s evidence that from time to time they bought Benjamin groceries, did his laundry and gave him money for gas. However, they have not satisfied me that they spent $275 each and every month on groceries, laundry and gas for Benjamin. I appreciate the entries in these categories are estimates but some of the entries are clearly inaccurate. For example, the trust did not pay for groceries or laundry supplies when Benjamin was living in Alberta in the summer of 2008 but the trust was charged for groceries and laundry during those months. Similarly, Benjamin was not given trust money to buy gas when his licence was suspended for six months in 2007. Again, the trust was charged for gas throughout 2007.

[182] I find that it is more likely than not that Bill and Carol gave Benjamin, on average, $100 per month for everyday expenses like groceries and gas. Benjamin often had little or no income. During those years, he did not have enough money to support himself. When Benjamin had no income, Bill and Carol likely gave him more than $100 per month for groceries and gas. When Benjamin was earning more money of when the trust funds were being used to pay Benjamin’s debts, Bill and Carol likely gave him less than $100 per month. I allow $15,000 of the $42,125 monthly claims for groceries, laundry and gas.

[183] There are four additional disbursements for gas, totalling another $166.52.[^16] Receipts were produced for these disbursements. I allow these additional expenses.

(r) Monthly Transportation Expenses

[184] In addition to the expenses for Benjamin’s cars, car insurance and gas, there are 49 entries in the accounts for “monthly transportation expenses as per settlement proposal.” There are entries for each month between September 2000 and August 2003. After August 2003, the entries for monthly transportation become sporadic.[^17] There is a note in the account that Benjamin did not have a car in June 2012 because he had an accident. Otherwise, there is no explanation for why transportation expenses are claimed in some months but not others. Each entry is for $115 and these expenses total $5,635.

[185] Carol testified entries for monthly transportation reflect the amount she and Bill were reimbursed from the trust for gas to drive Benjamin around. She testified that if Benjamin needed to go somewhere, they would drive him. Carol testified that gas actually cost them “way more than $115” per month. Carol also testified that they did not take $115 out of the trust funds each month. If there were trust money left after the other expenses had been paid, they would use it for gas for their vehicles.

[186] I am not satisfied that this disbursement was actually paid from the trust. The Statement of Accounts includes other disbursements for specific transportation costs. For example, there are charges for Benjamin’s taxi to and from his tutoring sessions. There are charges for driving Benjamin to and from Maple Creek Christian Ranch when he was working there part-time during high school. There are charges for travel to and from various medical appointments. I have dealt with the specific transportation claims separately. I am not satisfied that an additional $5,634 was paid out of the trust to Bill and Carol for transportation expenses. These disbursements are disallowed.

(s) Medical Expenses

[187] There are several health-related expenses in the account, which total $4,770.77. Bill and Carol have receipts for some but not all of these expenses.

[188] There is a $200 disbursement dated December 4, 2001 for “Dr. Kellner at Dundas Dental Centre.” Carol testified that Benjamin had several teeth removed when he was in high school. Carol testified that the total cost for the procedure was $1,000 but 80 percent of the cost was covered by Bill’s health insurance. No receipt was submitted to support this expense. In my view, this is not an appropriate expense to be paid by Benjamin’s trust. This is an ordinary childhood medical expense entirely unrelated to Benjamin’s accident. This expense should have been covered by Bill and Carol as Benjamin’s parents, not by his trust.

[189] There are two disbursements for Vision Advantage totaling $388.[^18] One is dated January 16, 2004 for contact lenses for Benjamin and the other is dated December 19, 2005 for prescription glasses. Receipts are provided for both these disbursements. I am satisfied that these disbursements are appropriately. There is no evidence that Benjamin was still covered by Bill’s health insurance in 2004. It was, therefore, appropriate to use Benjamin’s trust funds to pay for his prescription glasses and contact lenses.

[190] Benjamin developed mastoiditis in his right ear after the accident that caused him migraines and tension headaches. Benjamin had a mastoidectomy at Toronto General Hospital in the fall of 2004. There are several entries between August 2004 and January 2005, totaling $374.21, for mileage to and from medical appointments and parking at the hospital.[^19] One receipt was produced for parking at the University Health Network in Toronto on December 22, 2004 for $16. I am satisfied that Bill or Carol drove Benjamin to his medical appointments in the fall of 2004. These expenses are related to Benjamin’s accident and I find they were appropriately paid out of the trust.

[191] Between November 2006 and June 2007, there are eight disbursements for $60.61 for “Prescription for Benjamin.” No receipts were adduced to support these expenses. I accept Carol’s evidence that Benjamin was prescribed medication to manage his headaches after the accident. However, I am not satisfied his prescription cost $60.61 per month or they were paid by the trust. I disallow $484.88.

[192] During the same timeframe in late 2006 to early 2007, there are several disbursements for travel to and from medical appointments at Toronto Western Hospital.[^20] The total claimed for these entries is $212.90. According to Carol, Benjamin blacked out while he was at Master’s College and was taken by ambulance to the Toronto Western Hospital. Benjamin required follow-up testing and appointments after he was discharged from hospital. I accept that Bill and Carol went to the hospital when Benjamin was taken by ambulance and that they took Benjamin to follow-up appointments. I find the travel expenses related to Benjamin’s medical appointments in late 2006 and early 2007 are approximate trust expenditures.

[193] In early 2007, Benjamin started having seizures. He was taken to the hospital and referred to a neurologist. A letter from the Ministry of Transportation dated February 6, 2007 confirms that Benjamin’s licence was suspended for medical reasons. There are several disbursements for expenses related to Benjamin’s admissions to the Brampton emergency department and follow-up appointments at the Toronto Western Hospital Epilepsy Clinic, which total $236.62.[^21] Given that Benjamin did not have a driver’s licence at that time, I am satisfied that Bill or Carol drove Benjamin to his appointments after he started having seizures. I am also satisfied that the expenses claimed in relation to these appointments were incurred by the trust and were appropriate.

[194] From August 2012 to December 2013, there is a monthly disbursement for $100 for “Prescription Medication due to Work Place Injury.” No receipts were produced to support these expenses.

[195] Benjamin suffered a workplace injury on August 15, 2012 and was off work for a period of time. An orthopaedic surgeon at Sunnybrook Hospital assessed Benjamin in early March 2013. A follow-up assessment was done in early June 2013. According to the surgeon’s June 2013 report to the Workplace Safety and Insurance Board, Benjamin was on four medications at that time. One of the prescriptions had been recently added to help him sleep. There is no evidence who prescribed the other three medications or when they were first prescribed. There is also no evidence about how much Benjamin’s medications cost or whether the Workplace Safety and Insurance Board covered the cost. Based on the totality of the evidence, I am not satisfied that the trust paid $100 per month for medication during this period. I disallow these $1,700 in disbursements.

[196] There are two dental claims in the account from 2014, which total $495.[^22] By that time, Benjamin was 30 years old, had completed college and was no longer living at home. Receipts were submitted to support each claim. By 2014, Benjamin would no longer have been covered by Bill’s health insurance. These are legitimate expenses to be covered by the trust once Benjamin was an adult and living independently. These expenses are allowed.

[197] Benjamin made two suicide attempts in the spring of 2015. He was taken to Lakeridge Health in Oshawa both times. After his second suicide attempt, Benjamin was transferred to Peterborough Regional Health Centre. Bill testified that they went to visit Benjamin in hospital after both suicide attempts. There are several entries in the account for travel expenses (mileage and parking) related to Benjamin’s hospital stays and follow-up appointments, which total $157.92.[^23] There are no receipts for the parking expenses. However, Carol worked at Lakeridge Health for many years and knew the rate to park at the hospital. I accept Bill’s evidence that they visited Benjamin after his suicide attempts. The travel expenses related to those visits are appropriate trust expenses and are allowed.

[198] Finally, there are two entries in the account from Equilibrium Healthcare Solutions totaling $395.97.[^24] Carol testified that Benjamin decided he did not want to continue taking the medication that had been prescribed to him. He consulted a naturopath at Equilibrium Healthcare Solutions, who prescribed several natural remedies. The prescription and receipts from the naturopath were filed as exhibits. There is also a receipt from September 2005 for $213.96 from General Nutrition Centre Inc., which appears to be for some sort of supplements.[^25] I accept these expenses were paid by the trust and are allowed.

[199] In total, I allow $2,474.58 of the medical expenses claimed.

(t) Civil Lawsuit with Maggie Lalonde

[200] Benjamin dated Maggie Lalonde for a period of time. After their relationship ended, Ms. Lalonde filed a Small Claims Court action claiming that Benjamin borrowed money from her but never paid her back. Benjamin retained a paralegal. The matter went to trial on January 11, 2012. Benjamin was ordered to pay Ms. Lalonde $12,000 in damages.

[201] There is a $2,500 disbursement in the account for Benjamin’s legal fees.[^26] The paralegal’s account was filed as an exhibit. The paralegal’s account shows that a $500 retainer was provided and the balance owing was $2,000. Bill and Carol also produced a handwritten receipt dated January 4, 2012 for $2,000 for “trial Jan 11th, 2012.”

[202] Bill and Carol both testified that they paid the paralegal from the trust. Carol testified that they transferred $1,900 into Bill and Benjamin’s joint account on January 3, 2012 for Benjamin to pay his legal fees. Bill and Carol produced a duplicate cheque in the amount of $1,900 drawn on their personal account. The cheque is dated January 2, 2012 and is payable to Ben Cochrane. The note on the cheque says, “lawyer.” The bank statement from Bill and Benjamin’s joint account confirms that $1,900 was deposited into that account on January 3, 2012. The following handwritten note appears on the bottom of the January 2012 statement from the joint account:

[203] Carol confirmed that she wrote this note but said she could not remember what it meant. She was adamant that the full $2,500 for the paralegal was paid from the trust. I do not accept her evidence on this point. The plain reading of Carol’s handwritten note is that Bill and Carol paid $1,900 of the $2,000 account personally and Ben paid $100. The $1,900 cheque written to Benjamin from Bill and Carol’s personal account supports this interpretation of Carol’s note. Carol’s note also suggests that on January 25, 2012, she and Bill were reimbursed $500 of the $1,900 they paid towards the paralegal’s fees. According to the bank records for the trust account, $1,500 was withdrawn from the trust on January 25, 2012. I find that Bill and Carol took $500 of that $1,500 to reimburse themselves for part of the $1,900 they gave Benjamin for the paralegal.

[204] A further withdrawal of $1,000 was made from the trust account on March 19, 2012. Based on Carol’s note, it appears that $600 of that $1,000 was used to reimburse her and Bill either for the $400 rent money Benjamin borrowed in February 2012 or for the legal fees they had paid.

[205] I accept that the paralegal’s initial $500 retainer was paid out of the trust. I also find that the trust paid $1,100 of the $2,000 final account ($500 on January 25, 2012 and $600 on March 20, 2012). It may be that Bill and Carol were eventually reimbursed by the trust for the full legal fees. However, the handwritten note on the account suggests that as of the end of March 2012, Bill and Carol were still owed money from the trust for the legal fees.

[206] I allow $1,600 of the $2,500 disbursement in the Statement of Accounts for the legal fees related to Ms. Lalonde’s trial.

[207] Benjamin did not immediately pay Ms. Lalonde the $12,000 in damages she was awarded at trial. Several years later, Benjamin approached Bill and Carol about paying off the judgment. Bill and Carol agreed to save some of Benjamin’s trust money so Benjamin could use it to pay Ms. Lalonde. Between May 2015 and April 2016, the balance in the trust account grew from $1,311.96 to $7,250.86. On April 19, 2016, $7,000 was deposited into Benjamin’s personal account.[^27] Bill, Carol and Benjamin signed a document confirming that Benjamin was receiving money from his trust for Ms. Lalonde. Because Benjamin did not testify, I have no evidence to contradict Bill and Carol’s testimony, which is supported by the signed document and bank records, that Benjamin received $7,000 from the trust for the purpose of satisfying the civil judgment against him. The $7,000 expense is allowed.[^28]

(u) 2015 Assault Charges

[208] Benjamin was charged with assault in 2015. He retained Hicks Adams LLP. There is a disbursement in the account for $847.50 for counsel fees. A retainer letter from Hicks Adams was filed as an exhibit. Counsel requested a retainer of $750 plus HST ($847.50). A handwritten note on the letter and a receipt confirm that Bill paid the retainer in cash on August 26, 2015.

[209] There is also a $107.35 disbursement dated May 12, 2015 for a woodworking workshop. A receipt from Reclaimed, Refinished, Restyled for a workshop on May 12, 2015 was produced with proof that the invoice was paid. Bill and Carol both testified that the Court either ordered or recommended that Benjamin complete the workshop.

[210] I am satisfied that counsel’s retainer and the workshop fee were paid from the trust funds for Benjamin’s benefit. These expenses are allowed.

(v) Transfers to Benjamin and Bill’s joint account

[211] According to the Statement of Accounts, Benjamin withdrew $16,305 from the joint account (Scotiabank account number 35212 02025 25) between July 2010 and March 2016.

[212] From May to August 2014, $500 was deposited into Bill and Benjamin’s joint account each month. From September 2014 to March 2016, $600 was deposited into the joint account each month. There are corresponding withdrawals from the account for each deposit. Benjamin admits that the money withdrawn from the joint account on March 3, March 31, May 1, 2015, May 29, June 29, July 30, August 31, September 30, October 30, November 30 and December 29, 2015 as well as January 29, 2016 was money from his trust. However, Benjamin argues that Bill and Carol have not proven that he withdrew the money from the joint account.

[213] Bill and Carol both testified the joint account was opened so they could deposit trust money into the account and Benjamin could withdraw money from the account. Bill testified that he never took money out of the joint account for his own use. He did withdraw cash from the joint account from time to time but gave the cash to Benjamin.

[214] PIN records for the joint account were filed as business records. I did not hear from anyone at Scotiabank about how to interpret the PIN records or how the PIN records correspond to the account statements. The PIN records appear to confirm whether Bill’s bank card or Benjamin’s bank card was used for various transactions on the joint account.

[215] The PIN records are incomplete. There are some entries in Bill and Carol’s Statement of Accounts for the trust for which there is no PIN record. There are also PIN records for transactions that do not appear as disbursements on the Statement of Accounts for Benjamin’s trust. For example, there are PIN records that appear to show that Benjamin’s bank card was used to withdraw $500 from the joint account on June 3 and June 16, 2011 but there are no disbursements in the account for Benjamin receiving $500 on those dates.

[216] The PIN records seem to confirm that on twelve occasions between June 9, 2014 and January 29, 2016 Benjamin’s bank card was used to withdraw money from the joint account as described in the Statement of Accounts. The total value of the withdrawals using Benjamin’s bank card that are confirmed by the PIN records is $6,695.

[217] The PIN records seem to show that Bill’s bank card was used to withdraw $500 from the joint account on two occasions: October 15, 2011 and December 15, 2011. The Statement of Accounts records these transactions as cash withdrawals by Benjamin. These two PIN records were not put to Bill during his testimony. Carol could not explain this discrepancy in the records.

[218] Based on the totality of the evidence and notwithstanding the discrepancies in the two PIN records, I find that Benjamin received $16,305 in trust funds through the joint account between July 2010 and March 2016. The PIN records corroborate many of the withdrawals attributed to Benjamin in the account. I accept Bill’s evidence that he never withdrew money from the joint account for his own use. To the extent that two of the PIN records show that Bill’s bank card was used to withdraw money, I find that he withdrew the cash and gave it to Benjamin. I, therefore, allow the $16,305 in disbursements for cash withdrawals from the joint account.

(w) Transfers to Benjamin’s Personal Account

[219] Between March 2016 and May 2017, $29,299.21 was transferred from Benjamin and Bill’s joint account into bank account 64782 11438 24. Bill and Carol argue that account 64782 11438 24 is Benjamin’s personal account.

[220] In April 2016, Benjamin asked Bill and Carol if he could receive the annuity payments directly. Bill and Carol agreed. They signed a document confirming that Benjamin was assuming control of the annuity. Benjamin agreed that he would be responsible for his own debts and expenses once he was receiving the monthly annuity payments. Manulife Financial refused to pay Benjamin directly. Manulife took the position that the 2002 court order required the annuity payments to go to Bill and Carol in trust for Benjamin. To give effect to their agreement despite Manulife’s position, Bill and Carol agreed to transfer the full annuity payment to Benjamin each month.

[221] Benjamin admits he received $21,289.40 from the trust after the April 2016 agreement was signed.[^29] As of June 21, 2016, the annuity payments were transferred to account 64782 11438 24 each month. Given Benjamin’s admission that he received the monthly annuity payments, I find that account 64782 11438 24 was Benjamin’s personal account.

[222] I find that Benjamin received any money transferred into that account, whether before or after the April 2016 agreement was signed including the money to pay Ms. Lalonde. The following amounts were transfers into Benjamin’s personal account from the joint account in addition to the $21,289.40 he admits receiving and the $7,000 for Ms. Lalonde:

Date	Amount
March 16, 2016	$199
April 1, 2016	$550
June 6, 2016	$258.81
July 29, 2016	$2 (bank fee reversal)

[223] I find that all deposits into account 64782 11438 24 from the account jointly held by Bill and Benjamin, which total $22,299.21, were payments made to Benjamin from the trust for his benefit. These disbursements are allowed.

(x) Monthly Rent

[224] The last major category of expenses is rent. There is a $650 disbursement for rent each month from September 2002 until March 2016 with the exception of January to August 2004. In total, $100,750 was charged to the trust for rent.

[225] Carol and Bill do not have any receipts to show that Benjamin’s rent was paid out of the trust. They both testified they gave Benjamin whatever he needed to cover his rent. Carol testified that Benjamin would tell them how much rent he was paying and they would give him money from the trust each month. Carol testified that if there was not enough in the trust to pay Benjamin’s rent, she and Bill made up the difference personally. Bill and Carol also have no record of how much they contributed personally for Benjamin’s rent.

[226] Carol was asked how they came up with $650 per month if they have no receipts. Carol testified that she remembers Benjamin paid $650 in rent at some point in time. Bill testified that Benjamin was paying $650 when he first started college. They used that figure throughout the account even though Benjamin’s rent changed over time. Bill and Carol acknowledge that some entries for rent are not accurate because they are estimates.

[227] Benjamin was actually paying more than $650 in rent at various points in time. For example, between October 2008 and April 2009, Benjamin was living in Brampton and paying $725 per month in rent. A receipt was produced that shows Benjamin paid $850 for rent in May 2012. Between January and June 2013, Benjamin was paying $875 per month in rent in Acton. In July 2013, Benjamin signed a one-year lease for an apartment in Milton for $900 per month. In March 2015, Benjamin signed a lease for an apartment in Pickering for $1,000 per month.

[228] I accept Bill and Carol’s evidence that they gave Benjamin money from the trust for rent. For many years, Benjamin was not making enough money to cover his rent and other expenses. I also accept that there were likely times when Bill and Carol used their own money to supplement the trust funds to help Benjamin pay his expenses. The issue for me to decide, however, is whether Bill and Carol have proven that they gave Benjamin $650 each month for rent, in addition to the other expenses they claim were paid out of the trust. I am satisfied that some but not all of the rent payments are appropriate and legitimate. I have divided the 17 years into six discrete periods for the purpose of deciding whether Bill and Carol have proven that $650 was paid out of the trust each month for Benjamin’s rent.

(i) September 2002 to September 2005

[229] I am not satisfied that the trust paid $650 per month for rent for Benjamin between September 2002 and September 2005. From September 2002 until April 2003, Benjamin was attending Heritage College in Cambridge and was living in residence. According to an invoice from Heritage College, Benjamin paid $1,100 per term for residence. The trust did not pay $650 per month for rent while Benjamin was in residence during the 2002/2003 academic year. Those charges are disallowed.

[230] I am also not satisfied that the trust paid any rent for Benjamin during the summer months after his first year at Heritage College.

[231] Benjamin returned to Heritage College in September 2003. Carol testified that during the 2003/2004 academic year, Benjamin lived in a house with other students in Cambridge. I have already found that Benjamin left Heritage College before the end of the 2003/2004 academic year. There are no rent charges in the account between January 2004 and August 2004. This suggests that Benjamin did not return to Heritage College in January 2004 and was living at home. The evidence about where Benjamin was living in the fall of 2003 and how much he was paying in rent is not sufficiently reliable to satisfy me that the trust paid $650 for rent that term.

[232] After Benjamin left Heritage College, he worked at various camps for a few months at a time. According to a report prepared by Dr. Rumney in November 2004, Benjamin also worked for a period with his brother at a moving company. Eventually, Benjamin enrolled in Master’s College in Toronto. The monthly rent expenses between September 1, 2004 and August 2005 say they are for “monthly rent while attending Master’s College.” Benjamin’s academic transcript from Master’s College shows that he started his studies there in September 2005, not 2004. I find that it is more likely than not that Benjamin was living at home or at camp and not paying rent between December 2003, when he left Heritage College, and September 2005, when he started at Master’s College.

[233] I disallow the 26 monthly rent expenses for $650 between September 2002 and August 2005, which total $16,900.

(ii) September 2005 to April 2010 – Master’s College

[234] Benjamin enrolled in Master’s College in September 2005. He spent five years at Master’s College, graduating with a Ministerial Diploma in April 2010. During that five-year period, Benjamin never earned more than $6,100 in a given year. In 2007, he only declared $1,150 in income.

[235] I heard evidence that Benjamin lived with the Reverend Richard Hilsden and his family from May to October 2005. Rev. Hilsden testified at trial. He said that they did not charge Benjamin rent while he was living with them.

[236] Rev. Hilsden was the chair of the Board of Master’s College. He encouraged Benjamin to apply for Master’s College and helped him with the application. Rev. Hilsden testified that Benjamin moved in with his family in May 2005 in Oshawa. Benjamin was dating Rev. Hilsden’s daughter at the time. Shortly after Benjamin moved in, Rev. Hilsden got a job in Alberta. They sold their house in Oshawa in August 2015. Rev. Hilsden and his family stayed with family friends in Brampton until they moved to Alberta in October 2015. Rev. Hilsden testified that Benjamin went with them to Brampton. Rev. Hilsden testified that Benjamin continued to live with his friends in Brampton for six months or a year after he and his family moved.

[237] I accept Rev. Hilsden’s evidence that Benjamin lived with his family from May until October 2005. Rev. Hilsden was a straightforward witness and readily acknowledged limitations in his knowledge and memory. While I accept that Carol and Bill likely continued to give Benjamin some money from the trust while he was living with Rev. Hilsden, I am not satisfied that Benjamin received $650 from the trust for rent during this period. I disallow the rent expenses for September 2005 and October 2005.

[238] I do not accept Rev. Hilsden’s evidence that Benjamin continued to live with his friends in Brampton after he moved to Alberta. Benjamin was working at Dagmar Resort in Ashburn, Ontario in December 2004 and January 2005. Benjamin was working at Lakeridge Resort in Oshawa in February and March 2006. Dagmar and Lakeridge are ski resorts very close to Bill and Carol’s house. Carol testified that Benjamin was living with them when he was working at Dagmar and Lakeridge. I find that it is more likely than not that Benjamin was living with Bill and Carol in the winter of 2005/2006, not in Brampton with Rev. Hilsden’s friends. I am not satisfied that Benjamin received $650 from the trust for rent while he was living with his parents. I disallow the rent expenses charged to the trust between November 2005 to March 2006.

[239] It is not clear where Benjamin was living between April 2006 and April 2008. The account entries between April 2006 and December 2006 simply say, “monthly rent while attending Master’s College.” The account suggests that Benjamin lived on Muirland Crescent in Brampton from January 2007 until December 2008. This is not consistent with the receipt that was produced from Benjamin’s landlord that says Benjamin rented the apartment on Muirland Crescent for $725 per month from October 2008 to April 2009.

[240] Although the evidence does not establish where Benjamin was living or what rent he was paying, I am satisfied that he was receiving money from the trust to cover his rent between April 2006 and April 2008. In 2006, Benjamin’s declared income was $4,338. In 2007, his declared income was only $1,150. Benjamin was not earning enough money to pay his rent and other expenses during this period. He must have received money from the trust during this time to pay his rent. I allow the rent expenses for the period between April 2006 and April 2008, which total $15,600.

[241] The rent disbursements in May, June, July and August 2008 also say they are for an apartment on Muirland Crescent in Brampton. These entries are also contradicted by the receipt from Benjamin’s landlord that says he moved to that apartment in October 2008. More importantly, Benjamin moved to Lake Louise for the summer of 2008. Bill admitted the trust was not paying rent in Brampton while Benjamin was in Alberta but he testified that the trust paid for Benjamin’s rent for his place in Alberta. I do not accept Bill’s evidence on this point. The joint bank account established for Benjamin’s use did not exist in the summer of 2008. There is no evidence that Bill and Carol sent money to Benjamin while he was in Alberta. Bill and Carol have not satisfied me that the trust incurred expense for Benjamin’s rent in May, June, July and August 2008. I, therefore, disallow those disbursements, which total $2,600.

[242] It is not clear where Benjamin was living when he returned from Lake Louise before he moved to Muirland Crescent in Brampton in October 2008. Between October 2008 and April 2009, Benjamin was living in Brampton and paying $750 per month. It is also not clear where Benjamin was living between April 2009 and April 2010. The Statement of Accounts suggests that Benjamin was living at 169 Churchill Road in Acton but that is inconsistent with the signed note from Benjamin’s landlord that says he rented the apartment on Churchill Road in Acton from January 1 to June 30, 2013. Regardless, Benjamin was not earning enough to support himself and pay his rent between September 2008 and April 2010. In 2008, Benjamin’s declared income was $6,056. In 2009, he had no declared income. In 2010, his total declared income was $9,370. Although I have no clear evidence where Benjamin was living between September 2008 and April 2010, I am satisfied the trust was giving him at least $650 per month to help pay his rent. I, therefore, allow the rent expenses claimed during this 20-month period, totaling $13,000.

(iii) May 2010 to December 2011

[243] The entries in the account for rent payments during the 20-month period between May 2010 and December 2011 say, “monthly rent at 169 Churchhill [sic] Road North, Acton, ON.” A handwritten note from P.J. Fenell was produced that says that Benjamin rented the apartment at 169 Churchill Road North in Acton from January 1, 2013 to June 30, 2013 for $875 per month.

[244] There is, however, other evidence that Benjamin was living at 169 Churchill Road in Acton during in 2010 and 2011. A Record of Employment (“ROE”) produced at trial confirms that Benjamin worked at the Halton Conservatory in Burlington from November 13 to November 23, 2010. A second ROE confirms that Benjamin worked at Avalon Horizons Program from January 4, 2011 to May 26, 2011. Both ROE forms were addressed to Benjamin Cochrane at 169 Churchill Road North, Acton. Two other ROE forms from 2011 and early 2012 were filed as exhibits. Those forms were also addressed to Benjamin Cochrane at 169 Churchill Road North, Acton.

[245] I accept the ROE forms as accurate and reliable evidence that Benjamin lived at 169 Churchill Road between May 2010 and December 2011. Benjamin may have still been living there in 2013 as the note from P.J. Fenell suggests or the note is inaccurate. Either way, I find that Benjamin was living at 169 Churchill Road North in Acton from May 2010 to December 2011 and was paying $875 per month in rent.

[246] In May 2010, Benjamin had just graduated from Master’s College. His declared income for all of 2010 was only $9,370. His total rent from May to December 2010 would have been $7,000. He also had car insurance payments and other living expenses. Benjamin was not making enough money during this period to pay all of his expenses. I am satisfied that he was given $650 per month from the trust each month between May and December 2010 for rent and I allow a further $5,200 for rent payments.

[247] In 2011, Benjamin’s declared income was $19,029. This is significantly higher than his income in 2010 and more than he had ever declared in income before. I have already allowed $400 per month for car insurance during this period, which would have added $4,800 to Benjamin’s available income. I have also allowed approximately $100 per month from food, laundry and gas, which would add a further $1,200 to his available income. I am not satisfied that Benjamin received a further $650 per month during this period when he was making more than he had ever made before. In addition, in 2011, $8,725.14 of Benjamin’s trust money was used to pay Benjamin’s credit cards. Benjamin likely received some assistance with his rent from time to time in 2011, but Bill and Carol have not satisfied me that the trust paid Benjamin $650 each month in addition to the other expenses incurred during this period. I disallow a further $7,800 claimed in rent payments.

(iv) January 2012 to April 2014 – Student Loan Repayment Period

[248] I am not satisfied that the trust paid $650 for Benjamin’s rent between January 2012 and April 2014. I have already found that the trust was paying $1,000 per month to the National Student Loan Service during this time. The trust was not receiving enough money to also give Benjamin $650 for rent.

[249] From January to July 2012, the trust received a monthly payment of $1,491.13. The monthly payment increased to $1,520.93 in August 2012. In August 2013, the monthly payment increased to $1,551.37. There was no accumulated balance in the trust account to cover expenses that exceeded the monthly payment from the annuity when Benjamin’s student loans were being repaid. There was not enough money coming into the trust to pay for rent and the other expenses claimed (gas, groceries, laundry and car insurance) while Benjamin’s student loans were being repaid.

[250] Carol’s handwritten note on the January 2012 bank statement from Bill and Benjamin’s joint account (excerpted above in para. 202) says Benjamin “borrowed” $400 for rent in February 2012. I take this to mean that Benjamin borrowed $400 from Bill and Carol personally. This also suggests that Bill and Carol were not giving Benjamin $650 from the trust for rent during this period.

[251] I disallow the disbursements for rent between January 2012 and April 2014, which total $18,200.

(v) May 2014 to March 2015

[252] Between May 2014 and March 2015, Benjamin was living in Milton. He signed a one-year lease in July 2013 for an apartment on Cousens Terrance, paying $900 per month in rent. There is some evidence to suggest that he moved to an apartment at 73 Campbell Ave. in Milton in 2014 or 2015. In 2014, his declared income was $17,762 and in 2015, his income was $16,549.

[253] By May 2014, Benjamin’s credit card and student loans had been paid. Bill and Carol had not started saving money for Benjamin to pay Ms. Lalonde. As a result, there would have been more money in the trust to help Benjamin with his expenses than in previous years.

[254] I have already found Benjamin was receiving $500 or $600 from his trust each monthly during this period through the joint account. I have also approved a monthly $100 charge for gas and groceries and $192 per month for car insurance. I am not satisfied that Benjamin was receiving an additional $650 per month from the trust for rent on top of all the other expenses that have been allowed during this time period. The rent expenses between May 2014 and March 2015, which total $7,150, are disallowed.

(vi) April 2015 to March 2016

[255] I am not satisfied that the trust paid $650 for Benjamin’s rent between April 2015 and April 2016. During this 13-month period, the trust accumulated $7,000 that was given to Benjamin in April 2016 to pay Ms. Lalonde. Between April 2015 and April 2016, Bill and Carol were also putting $600 per month into the joint account for Benjamin. The bank statements for the trust account show that for several months during this period, the only withdrawal from the account was $600, which was deposited into the joint account for Benjamin. There was not enough money coming into the trust during this period to pay Benjamin $650 for rent in addition to the monthly $600 payment into the joint account and saving money for Ms. Lalonde. In April 2015, the trust was only receiving $1582.40 per month. The monthly payment increased to $1,614.05 per month in August 2015.

[256] Carol and Bill have not satisfied me that the trust paid $650 for Benjamin’s rent between April 2015 and April 2016 and I, therefore, disallow these disbursements totaling $8,450.

(y) Miscellaneous

[257] There remain several miscellaneous disbursements in the account that are not captured in the categories above.

[258] There is a $250 disbursement for “corporate truck and forklift driving school” in May 2005. Bill testified that Benjamin needed his forklift-driving licence for his job at a lumberyard. Bill and Benjamin did the course together. A receipt from the school was filed as an exhibit as well as Benjamin’s certificate of completion. I am satisfied that this is an appropriate expenditure from the trust.

[259] There is a disbursement for $2,109.48 from Sears on January 18, 2006. Carol testified that this was for a mattress for Benjamin. There is also a disbursement from Sleep Country in January 2010 for $101.69. Carol testified that this was for a bed frame for Benjamin. Receipts for both purchased were filed as exhibits. I accept Carol’s evidence that Benjamin’s trust funds were used to buy him a new mattress and bed frame. These disbursements are allowed.

[260] There is a disbursement for $124.29 from Canadian Tire in June 2013 for the purchase of a microwave oven. A receipt for this purchase was filed as an exhibit. Carol testified that Benjamin needed a microwave but could not afford to buy it himself. She testified that they helped him pick it out and they used his trust funds to buy it for him. I accept Carol’s evidence on this point and this expense is allowed.

[261] There are several disbursements for meals at Swiss Chalet in 2013 and 2015, which total $587.12.[^30] Carol testified she and Bill usually go to Swiss Chalet after church on Sunday. She testified that Ben would join them from time to time. He occasionally brought his girlfriend as well. Carol testified that their other children would also join them from time to time. She and Bill usually paid for the meal but if there was money in the Benjamin’s trust account, they would use it to pay for their meals when Ben joined them. I am not satisfied this is an appropriate expense for the trust to pay. Bill and Carol paid personally when their other children joined them at Swiss Chalet for a meal. Benjamin should not be required to pay for his meal and his parents’ meals simply because he is the beneficiary of a trust. The Swiss Chalet expenses are disallowed.

[262] There are several entries in the Statement of Accounts for postage expenses, which total $400.42.[^31] I did not hear any evidence about some of these expenses. For at least two disbursements, Carol testified that she could not recall what the charges were for. Given the lack of evidence about these expenses, I am not satisfied they were incurred by the trust for Benjamin’s benefit and they are disallowed.

[263] Finally, there are several entries totaling $750 for purchasing or renting clothes for Benjamin for his graduation and family weddings.[^32] No receipts were adduced to support these expenses. Pictures of Benjamin’s Master’s College graduation in 2010 show Benjamin wearing a suit and tie. Carol testified that Benjamin was in Jason and Ken’s wedding parties. According to the notes prepared by Carol, she and Bill paid to rent a suit for Benjamin for his siblings’ weddings. I accept that Bill and Carol bought or rented a suit for Benjamin for his graduation and the family weddings. However, I am not satisfied that trust funds were used to reimburse them for these expenses so these disbursements are disallowed.

[264] In total, I allow $2,585.46 in miscellaneous expenses.

E. Trustee Compensation and Legal Fees

[265] Bill and Carol claim they are entitled to claim $131,038.42 in trustee compensation – $33,214.66 for “receipts and disbursements” and $97,823.76 for “care and management.” This represents more than 30 percent of the amount received by the trust during their administration. Bill and Carol are only seeking compensation to offset any amount I order them to repay.

[266] Bill and Carol did not call the accountant to explain the compensation calculations. Nonetheless, there are obvious problems with the calculation of each component. The “receipts and disbursements” compensation is a percentage of the total receipts and disbursements. The accountant used $664,293.36 as both the total received by the trust and the total disbursed from the trust. I have already found that this figure is artificially inflated and misleading because it includes all the unpaid disbursements and fictitious loans. The trust actually received $418,675.25. I have found that only $253,144.11 of the claimed disbursements are legitimate. If the accurate figures are used, the compensation for receipts and disbursements would be only $16,795.48, not $33,214.66.

[267] The “care and management” compensation is based on a percentage of the “average annual market value” of the property under management, which was valued at $1,465,305.20. The “average annual market value” is the average of the asset at the beginning of the accounting period (which they took to be $430,000) and the assets at the end of the accounting period (which they took to be $2,500,610.40). It is not clear how the accountants arrived at $2,500,610.40 as the assets at the end of the accounting period. The accounting period for Bill and Carol’s administration of the trust ends in May 2017. By that time, the trust had only received $418,675.25 of the total projected value of the trust, which is $2,591,685.60 if Benjamin lives to be 90 years old. It appears that “care and management” compensation was calculated on the mistaken assumption that the accounting period would end with Benjamin’s death.

[268] Regardless of how the “average annual market value” was calculated and whether the calculations are appropriate, I am not satisfied that Bill and Carol are entitled to any compensation for managing the funds received by the trust. “Care and management compensation” is intended to compensate trustees for the time and effort they spend managing and investing the capital assets of the trust: Irwin v. Robinson, 2007 CanLII 41900 (Ont. S.C.), at para. 69. The settlement from Benjamin’s lawsuit was invested in an annuity in 2000. After the trust was established, Bill and Carol simply withdrew the monthly payment and spent it as needed. Bill and Carol did not do anything to invest or manage Benjamin’s money beyond paying disbursements. I, therefore, find that Bill and Carol are not entitled to any care and management compensation.

[269] I am satisfied that Bill and Carol spent a significant amount of time administering Benjamin’s trust. They arranged and paid for tutors and caregivers. They attended medical appointments with Benjamin. They managed the repayment of his student loans and credit card debts. They gave him money to help pay his rent, car insurance, groceries and gas. They helped him find and purchase new cars. I accept their evidence that administering Benjamin’s trust and supporting him has taken a significant amount of time and effort.

[270] The amount Bill and Carol have claimed in compensation is unreasonable given that they failed to discharge their primary duty to account for the trust funds they received for Benjamin. Nonetheless, I am satisfied that they should receive some modest compensation related to the receipts and disbursements from the account. I find that Bill and Carol are entitled to $15,000 in compensation as the trustees of Benjamin’s trust. This will be deducted from the amount that is unaccounted for and they are required to repay the trust.

[271] The remaining issue for me to decide is whether Bill and Carol are entitled to charge their legal fees for this application to the trust.

[272] Bill and Carol included several disbursements in the account related to their legal fees and costs related to this application to pass accounts. Those disbursements include a $750 retainer for their former counsel and an $11,500 retainer for their current counsel.[^33] The expenses claimed also include the cost for travel to meet with counsel, parking, meals and office supplies. The disbursements related to the cost of this application total $12,775.55.

[273] If a lengthy and expensive hearing is required because the trustee’s failed to keep proper accounts, the Court can deny the trustee of compensation and can order the trustee to pay some or all of the costs associated with the passing of accounts personally: Zimmerman, at para. 125. This trial was unduly long and complicated because Carol and Bill did not discharge their duty to keep proper accounts. Most of the time and expenses associated with this trial could have been avoided if Bill and Carol had kept proper records of their administration of the trust. Some of the expense of the litigation could also have been avoided if the accounts were prepared in a more transparent, straightforward manner. It would be unfair to require Benjamin, as the beneficiary of the trust, to cover Bill and Carol’s legal fees to sort out what happened to his money. I disallow all expenses related to Bill and Carol’s legal fees.

F. Conclusion

[274] Benjamin made several allegations about Bill and Carol in his Notice of Objection. He alleges they failed to act in his best interests. He alleges they misappropriated his trust funds for their own use. He alleges they acted negligently and fraudulently. I do not need to rule on these broad allegations of misconduct to resolve the issues in this case. I have stayed focused on the task of assessing whether Bill and Carol have proven the disbursements in the Statement of Accounts are accurate and consistent with the terms of the trust.

[275] I also heard lots of evidence about how Bill and Carol have supported Benjamin throughout his life and provided for him since his accident. Being loving, supportive parents is not the same as being responsible, prudent trustees. Bill and Carol had a duty to administer Benjamin’s trust with reasonable skill and prudence. They had a duty to keep proper records so they could account to Benjamin for how his money was spent. Because Bill and Carol administered the trust in cash and did not keep accurate records, they are now unable to prove how all his money was spent.

[276] I have approved $253,144.11 in expenses from the trust. Bill and Carol have not accounted for $165,531.14 they received on Benjamin’s behalf and are ordered to repay the trust for the unaccounted for funds. The amount owing will be reduced by $15,000 in trustee compensation. Bill and Carol are ordered to repay the trust $150,531.14.

[277] I encourage the parties to settle the issue of costs. If they are unable to reach an agreement, the parties can serve and file written submissions on costs of no more than five pages plus supporting materials and authorities on or before August 20, 2021. Counsel are to send their costs submissions to my assistant electronically. In the event that I do not receive any written cost submissions by August 24, 2021, I will deem the issue of costs to have been settled.

Davies J.

Released: July 29, 2021

Appendix “A”

Allowed Expenses

Description	Amount Allowed
Academic Support	$ 14,528.00
Caregiving Expenses	$ 2,520.00
Maple Creek Ranch	$ 3,576.12
Guitar Lessons	$ 4,666.00
Activities during High School	$ 1,705.00
Psychological Services for Ken Cochrane	$ 630.00
Monthly Fax Expenses	$ 1,362.78
Computer Expenses	$ 3,367.93
Master’s College Tuition and Expenses	$ 1,574.12
Credit Card Payments	$ 11,163.02
Student Loan Repayment	$ 30,553.80
Car Expenses	$ 21,933.85
Car Insurance	$ 53,377.87
Laundry, Groceries and Gas	$ 15,166.52
Medical Expenses	$ 2,474.58
Civil Lawsuit with Maggie Lalonde	$ 8,600.00
2015 Assault Charge	$ 954.85
Transfers to Benjamin and Bill’s Joint Account	$ 16,305.00
Transfers to Benjamin’s personal account	$ 22,299.21
Monthly Rent	$ 33,800.00
Miscellaneous	$ 2,585.46
Total Expenses Allowed	$253,144.11
Total fund received by the trust	$418,675.25
Unaccounted for Trust Funds	$165,531.14
Trustee compensation	$ 15,000.00
Total owing by the trustees to the trust	$150,531.14

COURT FILE NO.: 03-124/17

DATE: 20210729

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

William and carol cochrane

Applicants/Trustees

• and -

benjamin cochrane

Respondent/Objector

REASONS FOR JUDGMENT

Davies J.

Released: July 29, 2021

[^1]: To avoid confusion, I refer to the parties by their first names throughout my reasons. I mean no disrespect to them by doing so.

[^2]: Disbursements 10, 16, 29, 45, 59, 65, 73, 89, 103, 116, 129, 138, 144, 155, 165, 180, 193, 206, 219, 229, 238, 250, 261, 276, 289, 293, 304, 314 and 326.

[^3]: Disbursements 35, 196 and 351

[^4]: Disbursements 71, 148, 169, 170, 228, 236, 272 and 282

[^5]: Disbursements 608, 611, 630, 643, 674, 480 and 983

[^6]: Disbursements 808 and 815

[^7]: Disbursement 1276

[^8]: Disbursements 1238, 1245, 1255, 1282, 1324, 1339, 1341, 1351, 1388, 1401, 1420, 1426 and 1437

[^9]: Disbursements 1303.

[^10]: Disbursements 329, 494, 587, 893, 1197, 1705, 1722, 1822 and 1931.

[^11]: Disbursements 12 and 22

[^12]: Disbursements 438, 439, 453, 454, 541, 542, 685, 686, 1185, 1186, 1724, 1725 and 2116.

[^13]: Disbursements 516, 802, 803, 939, 985, 986, 1055, 1067, 1256, 1342, 1390, 1400, 1474, 1575 and 1977.

[^14]: The monthly annuity payments increased from $1,582.40 to $1,614.05 in August 2015.

[^15]: Disbursements 1946, 1963, 1985, 1999, 2022, 2030, 2044, 2057, 2068, 2072, 2081, 2091 and 2104

[^16]: Disbursements 1226, 1598, 1965 and 2121.

[^17]: Disbursements 15, 28, 44, 54, 72, 88, 99, 115, 125, 143, 153, 163, 179, 189, 205, 215, 239, 251, 262, 277, 290, 305, 315, 327, 348, 358, 368, 376, 385, 394, 406, 415, 426, 441, 456, 544, 555, 915, 926, 940, 949, 963, 973, 984, 1577, 1959, 1983 and 2122

[^18]: Disbursements 511 and 762.

[^19]: Disbursements 582, 586, 589, 600, 601, 620, 621, 622, 627, 629, 637 and 642. All of the disbursements related to Benjamin’s medical appoints in Toronto are for $32 -- $16 for mileage and $16 for parking. Disbursement 601 is for $32.17. I find this is an error and should also be $32.

[^20]: Disbursements 855, 856, 870, 877, 878 and 895.

[^21]: Disbursements 896, 903, 924, 925, 931, 951, 960, 961.

[^22]: Disbursements 1849 and 1877

[^23]: Disbursements 1950, 1967, 1968, 1969, 1971 and 1979.

[^24]: Disbursements 2006 and 2046. Disbursement 2006 is dated July 19, 2015 for $235. The receipt submitted from Equilibrium Healthcare Solutions dated July 19, 2015 is for $234.49. For the purpose of my calculations, I have used the amount on the receipt.

[^25]: Disbursement 732.

[^26]: Disbursement 1519.

[^27]: The $7,000 was deposited into account 64782 11438 24. My finding that account 64782 11438 24 is Benjamin’s personal account is explained in detail in paras. 219 to 221.

[^28]: Disbursement 2120

[^29]: Benjamin did not identify which payments he received, however, disbursements 2127, 2134, 2137, 2143, 2147, 2151, 2155, 2159, 2164, 2166, 2170, 2190 and 2208 total $21,289.40.

[^30]: Disbursements 1682, 1937, 1947, 1948, 1957, 1987, 1993, 2007, 2013, 2021, 2039, 2052

[^31]: Disbursements 223, 275, 809 and 990.

[^32]: Disbursements 972, 1302 and 1851.

[^33]: Disbursements 2139, 2197 and 2202