COURT FILE NO.: CV-19-0165-00
DATE: 2022-01-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kathleen Dawn Moore
Applicant
- and -
Gregory Wilson McLean, Thomas Donald Moore, Daniel, David Moore, Donald Thomas Moore, and the Office of the Public Guardian and Trustee
Respondents
Morris Holervich, for the Applicant
Gregory Wilson McLean in person
No one appearing for the Respondent Donald Thomas Moore
No one appearing for Thomas Donald Moore
No one appearing for Daniel David Moore
No one appearing for the Public Guardian and Trustee
HEARD: January 6, 2022, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Decision On Motion/Passing of Accounts
[1] This is an ongoing matter involving a power of attorney for property. I have been case managing this file since P.J. Smith J. made an order for directions on April 24, 2020 see Moore v. McLean, 2020 ONSC 2577. Since that time there have been a number of attendances, endorsements and orders made by me in respect of an incapable person Donald Thomas Moore (“Don”).
[2] The most recent endorsement of August 10, 2021 directed the January 6, 2022 hearing would be treated either as a motion to remove the Respondent Gregory Wilson McLean (“Greg”) as Power of Attorney for Property (“POAP”) for Don or as a passing of accounts by Greg for the period August 2019 to August 2021.
[3] I will deal first with the motion by the Applicant Kathleen Dawne Moore (“Kathleen”) to have Greg removed.
Background
[4] I have set out the background facts for this matter in my endorsement of April 16, 2021 see Moore v McLean et al 2021 ONSC 2845 at paragraphs 5 through 9. I rely on that background for the disposition I am making in this endorsement. Further in my April 16, 2021 endorsement I determined that Greg should be permitted to continue to act as Don’s POAP. However, I stated at paragraph 36:
[36] In the event that Greg fails to produce all relevant bank statements and provide proper accounts, leave is granted to Kathleen to again renew her motion to have Greg removed as power of attorney for property. Greg has been granted a fair degree of latitude by the court to date. If he continues to take a “just in time” approach to the serving and filing of documents to both the court and to other interested parties, the court will not be impressed that he is conducting himself with a degree of diligence appropriate to the fiduciary duty he has undertaken and he will be removed.
[5] On May 27, 2021 I ordered Greg to provide counsel for Kathleen his accounts for the period August 1, 2019 to July 31, 2020 with all supporting documentation in paper form, properly tabbed on or before June 25, 2021. On June 24, 2021 Greg delivered a summary of bank statements for the period that did not include any supporting documentation.
[6] On January 5, 2022 Greg uploaded to Caselines a list of receipts and disbursements for the period August 1, 2020 to July 31, 2020 and from August 1, 2020 to July 31, 2021. As well, on the morning of the hearing, January 6, 2022, Greg uploaded additional documents which included the “accounts” filed on January 5, 2022 and some additional bank statements for one account owned by Don for the period May 2021 to January 4, 2022. It also included an undated document entitled “withdrawals-Don’s account”, “Don’s unnecessary costs” and “Greg’s Expenses”. In all that Greg filed there were no supporting receipts included.
The Law
[7] In Bellefeuille v. Bellefeuille, 2018 ONSC 6802, at paras. 5-7, Vallee J. helpfully summarized the general principles applicable to the issue of whether or not Greg should remain as POAP. She wrote:
An attorney is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith for the incapable person's benefit. (see Substitute Decisions Act, 1992 S.O. 1992, C 30 s. 32(1) and 38(1))
There must be strong and compelling evidence of misconduct or neglect on the part of the donee duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney. (See Teffer v. Schaefers, 2008 CarswellOnt 5447 para. 21 quoting Re: Hammond Estate (1998), 1999 CanLII 19754 (NL SC), 25 E.T.R. (2d) 188 at para. 31)
A guardian/attorney has a duty to be in a position, at all times, to prove the legitimacy of disbursements made on behalf of the estate of the incapable person: Aragona v. Aragona (Guardian of), 2012 ONCA 639 at para. 21, citing Carmen S. Thériault, Widdifield on Executors and Trustees, 6th ed (Toronto: Thomson Reuters Canada, 2002, loose-leaf), ch 13 at s 13-1.
[Citations in Original]
[8] Section 12 of the Substitute Decisions Act, 1992, S.O. 1992 c. 30 (the “Act”) gives the Court the power to terminate a continuing power of attorney for property if a guardian of property is appointed under section 22 of the Act. Section 25(2)(c) of the Act permits the Court to impose such other conditions on the appointment of a guardian for property as the court considers appropriate. Section 42 of the Act permits the Court to require a power of attorney for property to pass accounts. Section 42(7) permits the Court to terminate a power of attorney for property on a passing of accounts.
Analysis and Disposition
[9] The submissions and positions of Greg and Kathleen have remained consistent since I have been involved in this file. Kathleen complains Greg is not properly accounting for his actions. Greg says he is, acknowledges he has not provided many documents and then promises to do things after the fact. And then he does not.
[10] Greg complains Kathleen is a liar and only wants control of her father’s funds so she can enrich herself at his expense.
[11] So here we are again.
[12] In the late spring of 2021, I gave Greg a clear direction to prepare proper accounts and to provide same to Kathleen with supporting documentation. This has not been done. On the occasion of the motion of April 2021 I was prepared to overlook Greg’s apparent degree of disorganization when dealing with Don’s affairs. I cautioned Greg against continuing his “just in time” approach to disclosing documents. It seems to me Greg has ignored that direction. His “just in time” approach continued on the day of the hearing. Because of the “open door” capabilities of the Caselines program, Greg was able to upload yet another tranche of documents on the morning of the hearing. While Greg is not alone in this practice, he was given clear, direct and express directions to provide receipts to support records as well as certain items of property, namely jewelry, to Kathleen’s counsel in a timely way well before the hearing. This was not done.
[13] During the hearing the Court had to ask questions of Greg about a number of significant cash expenditures made on Don’s behalf. It is not appropriate that the Court and the interested parties have to get details about important expenditures during a hearing rather than in prior disclosure. One such fact was the revelation that Greg used $7,500.00 of Don’s money to buy a plot and a headstone for Don and his predeceased wife. Greg told the Court the plot is “in Port Arthur cemetery” and the headstone is at Lakehead Monuments. However, but for the question from the Court, that information would have remained unknown to Kathleen and the Court.
[14] Greg has used Don’s funds to pay lawyers. One counsel did appear for Don at several of the attendances in 2020 and was of assistance to the Court. However, the actual accounts of that lawyer were not disclosed in the material filed.
[15] Greg advised again during the hearing that he has receipts for cash transactions, and he is happy to provide them to counsel. In his affidavit filed with the Court on January 5, 2022 he repeats a familiar refrain when he states, “Mr. Holervich can request from me any receipts that Kathleen Moore disagrees with”. I am of the view that Greg is not following through on clear direction from the Court.
[16] Greg has promised to produce receipts before. He has not followed through with these promises. He was told by the Court this is not how this works. In my view, there is strong and compelling evidence of neglect in Greg’s conduct as POAP after April 2021.
[17] It appears to me from the information that has been provided, that Don’s day to day financial needs are being met on an ongoing basis. Greg has seen to it that Don’s income has largely matched his expenses. Don’s bank account declined slightly in the middle of 2021 but had recovered and increased by December 2021. I accept Greg at his word when he says he has been doing his best for Don. However, I do not see the requirement to provide receipts to an interested party like a Guardian for Personal Care for an incapable person as being particularly onerous particularly given the scope of Don’s affairs. Yet these duties and responsibilities seem to be overwhelming Greg.
[18] Greg has been given ample time, and clear direction as to what is required to properly account for his activities. I find since April 2021 he has not performed his duties in a manner that would allow the Court to ignore Kathleen’s request that the power of attorney for property made by Don appointing Greg must be terminated at this point. The requirement to be in a position at all times to prove the legitimacy of disbursements made on behalf of an incapable person is key to a finding of competence for an attorney for property. Greg’s conduct has now fallen below what is required of a fiduciary despite being given ample time and opportunity to appropriately account for what he has been doing on behalf of Don.
[19] I am prepared to make an order that Kathleen be designated as Guardian for Property for Don effective January 7, 2022. However, I direct that her efforts in that regard will be subject to conditions further to my powers under section 25(2)(c) of the Act. The conditions will be:
Don shall not be removed from his present long-term care accommodations at Pioneer Ridge except on further order of the Court or direction of Public Health Authorities.
Kathleen shall continue to make any and all payments necessary to continue Don’s stay in Pioneer Ridge until further order of the Court.
Kathleen is to provide the Public Guardian and Trustee both an updated Form 2 Management Plan and Guardianship Plan on or before February 25, 2022.
Once the PGT’s position on the new plans are received Kathleen shall arrange a case conference before Fitzpatrick J. to determine if the conditions imposed on this Guardianship shall be modified or eliminated.
Kathleen shall pass her accounts for the period January 7, 2022 to July 31, 2022 before Fitzpatrick J. The appointment to pass accounts shall be scheduled for some date between September 1, 2022 and December 2, 2022.
Greg shall be served with the accounts at least 30 days before the date set for the passing. Greg shall be given notice of the date scheduled for the passing and shall have standing to make submissions on the passing.
Kathleen will require leave of the Court if she wishes to pursue any further civil actions in her capacity as Guardian of Property against Greg in respect of any of his actions acting as POAP for Don;
[20] My reasons for imposing these conditions are as follows. Greg’s evidence and the conduct of both parties during this litigation has left me concerned about Kathleen’s motivation in taking over the role of Guardian for Property for Don. A constant theme in Greg’s submission is that Kathleen wishes to remove Don from long term care as a cost savings device and not to benefit Don. Kathleen does propose to remove Don from his current arrangement. I have had the benefit of reviewing her Care Plan which was filed in Caselines in June 2021. It is undated but calls for a transition of Don to Kathleen’s home on June 15, 2021.
[21] In the original application materials, Kathleen filed a Management Plan dated September 9, 2020. In a letter dated July 15, 2021 the Public Guardian and Trustee (“PGT”) indicates it has reviewed a Management Plan dated August 17, 2020. I could not account for the difference in the dates. In any event the PGT did not comment on the Management Plan as Greg was the POAP at the time. I note that Kathleen’s Management Plan is not fulsome of the details of exactly how much her proposed plan to move Don out of his current arrangement will cost. In section L under subsection “b” titled “Whether any significant increases or decreases in the above expenditures are anticipated, or whether any additional expenditures are likely. If so please explain” Kathleen answered:
I do intend to have my father moved from his LTC facility into my home as per his wishes. I do not anticipate that his expenditures would increase and I believe they would decrease. He will be entitled to home care if needed through OHIP and any additional costs would still be less than his present expenditures at LTC.
[22] I am not satisfied this is a particularly persuasive or transparent answer in all the circumstances. The pandemic has placed great strain on human resources engaged in long term care. I am aware anecdotally that there is a provincial shortage of Personal Support Workers (“PSW”). Kathleen’s plan calls for use of in-home care delivered by among others, a PSW. I have no idea if Kathleen can actually obtain appropriate PSW services for Don and what they are going to cost. The cost and availability of such support is unknown to the Court but seems to be an important component of ensuring that Don’s needs are met. The PGT is in the best independent position to assess these questions. However, Kathleen needs to provide the express details before moving forward with this very significant economic matter for Don.
[23] I am also concerned about moving around an elderly incapable person in the middle of a pandemic. I am confident Don’s present needs are being met at Pioneer Ridge. I therefore see it as being in his best interests that Don remain at Pioneer Ridge for the time being until the Court has further and better evidence of Kathleen’s economic plan for Don.
[24] I was concerned that in the Management Plan at section “E” Kathleen has indicated “I intend to file fraud charges against his POA and civil litigation to attempt to recoup his financial loss”. In my view, Greg has not caused Don any financial losses. Greg has not committed acts of fraud. He has neglected his duties however and that is very different from acts of either civil or criminal fraud. There were criminal proceedings initiated over Greg’s conduct. They have been resolved. In this litigation it has been demonstrated that there is an underlying level of personal vitriol between Kathleen and Greg that has done nothing to advance Don’s interests in any way. This matter has also taken up a great deal of the Court’s time at a time when resources are stretched. This endless litigation needs to come to an end.
Passing of Accounts
[25] I appreciate Greg has failed to provide receipts to substantiate expenditures he has made on Don’s behalf. However, the Court was able to obtain answers, albeit in a completely unpreferred manner of questioning during the passing. I do not see that Greg has materially dissipated or misappropriated or squandered Don’s assets. He just is not able to organize and report in a way that is satisfactory to the Court.
[26] What documents were provided are best described as accounts dealing with Don’s revenue account. Don now does not have any capital assets to speak of. The accounts were not in a proper form. However, I do not see it in Don’s interest to try and have Greg go back and re- submit the accounts. The passing process is designed to promote transparency and promote confidence in our substitute decisions process by having a fiduciary “show his or her work” to interested persons and the Court. Form does matter. It is designed to allow the parties and the Court readily and easily understand financial transactions that occur over time. However, in this case I do not see Greg’s failure to make his reporting in an easily and conventionally understood format as a badge of fraud. It is a badge of disorganization.
[27] In the interests of justice and trying to ensure that Don’s financial affairs are transitioned smoothly to Kathleen, I am prepared to pass Greg’s accounts for the period August 1, 2019 to July 31, 2020 and for August 1, 2020 to July 31, 2021. I also will not impose any further obligation for Greg to pass accounts for the period August 1, 2021 to January 6, 2022.
[28] For the Revenue account for August 1, 2019 to July 31, 2020, I find the credit balance forward as at August 1, 2019 was $22,615.16. Receipts for the period were $59,568.12. Disbursements for the period were $45,148.82. The credit balance as of July 31, 2020 was $37,034.46
[29] For the Revenue account for August 1, 2020 to July 31, 2021, I find the credit balance as at August 1, 2020 was $37,034.46. Receipts for the period were $55,706.10. Disbursements for the period were $57,295.59. The credit balance as at July 31, 2021 was $35,444.97.
[30] From the bank statements that were provided by Greg I find that Don’s revenue account stood at $41,245.49 as at December 6, 2021.
[31] Greg did not seek any compensation for his efforts in the materials filed.
[32] An Order will follow that Greg’s accounts acting in his capacity as power of attorney for property for Don are passed with the particulars noted above.
Costs
[33] In my view this matter does not call for a costs award against either party. In future and on the first passing of accounts Kathleen may request past and future counsel fees she has personally incurred be paid from Don’s assets and I will assess the merits of that request at that time.
[34] Counsel for Kathleen may prepare a draft order for Greg’s approval as to form and content. If Greg does not approve within seven days of being provided the draft order, Greg shall schedule a case conference before Fitzpatrick J. to settle the order. If Greg has not made any attempt to arrange such as conference fourteen days after being provided the draft order I invite counsel for Kathleen to simply provide my judicial assistant with the draft order and a copy of any correspondence with Greg indicating his position on the order or why he has not approved it or set a case conference before Fitzpatrick J. I will then deal with settling the order without further input from Greg.
[35] Independent of the forgoing, in the event there are any difficulties in the transition of Don’s financial records from Greg to Kathleen, I invite the parties to first schedule a case conference before me prior to commencing any further steps in this matter or issuing any new proceeding.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 12, 2022
COURT FILE NO.: CV-19-0165-00
DATE: 2022-01-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kathleen Dawn Moore
Applicant
- and -
Gregory Wilson McLean, Thomas Donald Moore, Daniel, David Moore, Donald Thomas Moore, and the Office of the Public Guardian and Trustee
Respondents
DECISION ON MOTION/PASSING OF ACCOUNTS
Fitzpatrick J.
Released: January 12, 2022
/lvp