ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CARMELINDA VENURA DE JESUS and EDUARDA VENTURA LIMA
Applicants
– and –
THE ESTATE OF MARIA EDUARDA DE OLIVEIRA BERNARDO VENTURA and ANTONIO MANUEL OLIVEIRA VENTURA
Respondents
Peter M. Callahan, for the Applicants
Ryan Petrovski, for the Respondents
HEARD: February 23 to 25, 2022 and March 1 and 21, 2022
REASONS FOR JUDGMENT
MCSWEENEY J.
OVERVIEW
1These are my reasons for judgment following the hearing of an estate application. The parties are the three children of the deceased, Maria Eduarda Oliveira Ventura (“Maria”). The Applicants are Maria’s daughters, Carmelinda DeJesus (“Linda”) and Eduarda Ventura Lima (“Eddie”). The Respondent is Maria’s youngest child and only son, Antonio Manuel Oliveira Ventura (“Antonio”).
2Linda and Eddie allege that Antonio has failed to account for Maria’s money and property while he was acting as Power of Attorney for Property (“POAP”). They bring this Application to remove Antonio as Estate Trustee and to compel him to pay back to the Estate the funds he failed to account for while managing Maria’s finances. They also seek damages for alleged destruction or devaluing of Maria’s property while Antonio lived in Maria’s home.
3At the time of her death on December 27, 2018, Maria’s only asset was her home. The home was sold in August 2020. As of February 2022, counsel advised that there was approximately $780,000 remaining in trust from the sale.
4Maria’s children are all one-third beneficiaries of Maria’s Estate. While the background narrative which led to this acrimonious litigation is grounded in family history, tensions and jealousies stretching back over 50 years, the issues on the application are legal and financial, and must be determined for the Court to decide whether Antonio should be removed as Estate Trustee; and how the Estate’s funds should be divided among the beneficiaries.
Issues requiring determination:
5Further to paragraph 11 of my Endorsement re: Conduct of Trial dated February 23, 2022, the factual and legal issues the court must determine on the evidence, in order to decide whether the parties are entitled at law to the relief they seek, are as follows:
Issue 1 - Did Antonio use Maria’s money solely for her benefit?
Issue 2 - Did Antonio’s use of the property decrease the value of Maria’s home?
Issue 3 - Did Antonio account to the Estate for Maria’s chattels left in the home?
Issue 4 - Has Antonio made out a claim for compensation for acting as Maria’s Attorney for Personal Care and Attorney for Property?
Issue 5 - Should Antonio be removed as Estate Trustee?
Matters NOT requiring determination:
6As I emphasized to all parties during the hearing, the evidence was clear that all three children loved their mother and still miss her.
7It was also clear that Antonio and his wife, Paula, provided much more of the day-to-day care and companionship for Maria between 2012 and 2017, than Linda and Eddie did. Linda fairly acknowledged this in her testimony.
8The Court accepts, based on the parties’ testimony, that in the last seven years of her life, Maria received care and love from each of her three children.
9Linda testified about the sisters’ concern about finding significant amounts of marijuana in Maria’s home in January 2018. During his evidence, Antonio described and documented his medical marijuana needs. Antonio’s evidence satisfied this Court that he was legally authorized to possess and grow marijuana for his personal use. I make no other findings on this topic.
10To be clear, the issues to be decided on this application do not require me to make findings regarding the correctness or necessity of any personal care decisions taken by any of Maria’s children on her behalf.
The Positions of the Parties:
11The Applicants (“sisters”) seek an order deducting from Antonio’s share of the Estate the funds belonging to Maria that he used for his own benefit, in breach of his fiduciary relationship as Power of Attorney, during the period he and his family lived with Maria before her death. The total amount claimed under this heading is $400,000.
12The sisters seek deductions from Antonio’s share of the estate:
for occupation rent for the months he and his family lived in Maria’s house before and after her death;
for alleged depreciation in the home’s value due to the condition he left it in; and
for the value of Estate chattels removed from Maria’s house or converted by Antonio after Maria’s death.
13Antonio denies ever using Maria’s money for his own benefit. He takes the position that it is the Applicants’ onus to prove all their claims, including their central allegation that he used Maria’s money for his own benefit.
14In addition, Antonio claims monetary compensation from Maria’s Estate for 11,296 hours of Personal Care services he claims to have provided to Maria after his family of four moved in with her in April 2012. At $20/hr, his compensation claim amounts to $225,920.
15With respect to Antonio’s compensation claim, I should note that he filed a separate claim against the Estate for dependant’s relief. By endorsement dated February 23, 2022, I found that the separate claim was not before me. I did, however, permit the parties to make final submissions on whether the evidence supports an entitlement to compensation from the estate for personal care services provided to Maria as her Attorneys for Personal Care.
16The hearing was conducted by Zoom videoconference. As directed by the Court, evidence in chief was given by way of affidavit, and tested by cross-examination. Each side called one witness: Linda for the Applicants, and Antonio as Respondent.
17What follows below is a summary of those agreed facts and evidentiary findings which relate to the issues to be decided. I have omitted allegations between siblings which did not form part of my decision. I did so not only for expedience, but also, specifically in this contentious content, to avoid repeating the inflammatory comments Linda and Antonio exchanged during testimony.
Evidence and Findings on Evidence:
18Maria was born in Portugal. She had little or no formal education. She never learned to use a computer or to drive a car. She spoke only Portuguese. She could not read or write in English, although she “had a good head for numbers” according to her daughter Linda.
19Maria and her husband settled in Toronto in 1961. He had a good job with benefits and a pension. All their children were born in and grew up in Toronto. In 1987, the couple sold their Toronto home and moved into a three-bedroom bungalow at 1371 Ogden Ave in Mississauga (“Maria’s home”).
20On her husband’s death in 1998, Maria became the sole owner of the home. With the exception of the year she died, Maria lived in that home for the rest of her life.
21Maria died on December 27, 2018. She left a Will appointing Linda, Eddie and Antonio as joint Trustees of her Estate. Her Will named her three children as sole beneficiaries, and provided that her Estate was to be divided equally among them.
Maria’s personal care:
22In April 2012, Maria was diagnosed by her family physician as suffering from dementia. She was still living on her own in her home at that time.
23Maria had previously named all three children jointly and severally, as her Attorneys for both property and personal care.
24Also in 2012, Antonio and Paula sold their own home in Mississauga and moved into Maria’s home.
25They used the funds from the sale of their own home to build a home in the Azores in Portugal.
26Antonio, Paula, their adult son Kyle, and sometimes their adult daughter Samantha, lived in Maria’s home from 2012 until it was sold in 2020. It was their residence in Canada throughout that time.
27From April 2012 until December 2017, Antonio and his family lived in Maria’s home with her, other than when they were in Portugal.
28Both Linda and Antonio testified that between 2012 and her death in 2018, Maria’s dementia progressed significantly. In the initial years of this period, Maria could still do her own personal care and some errands if accompanied; over the years, she became more and more dependent on others for activities of daily life. Her cognitive challenges progressed from initial forgetfulness to disorientation and wandering.
29Maria’s care was provided during the week by Antonio and Paula, and by Linda and Eddie on weekends and on a respite basis. Antonio testified that he was at home on disability due to a work injury throughout these years. Paula also did not work outside the home.
30Both Applicant sisters are married and have raised grown children. During these same years, the sisters worked outside the home and looked after their own households. They both provided alternate weekend care for Maria. Their husbands would typically assist by driving to Maria’s home at the end of the week to pick her up to spend the weekend with her daughters and their families.
31The sisters also provided respite care for Maria, specifically when Antonio and his family went to their home in Portugal.
32Maria’s cognitive decline was illustrated clearly in Antonio’s testimony about her wandering out of the house. He described one worrying incident in which he woke to sounds in the night and found his mother in the middle of their street, distraught and disoriented, having left her bed and wandered outside on her own. Antonio thereafter arranged for new door locks and yard fencing on Maria’s home and property.
33I accept that Antonio changed the locks on Maria’s home, and replaced the backyard fence, for Maria’s safety. I also find that, as Linda testified and Antonio did not dispute, Antonio did not offer his sisters a key to the new locks, nor did he invite his sisters inside the house when they visited their mother.
34In early December 2017, Antonio and Paula went on vacation to Portugal. Maria remained in Canada in the care of her daughters.
35When Linda learned that Antonio and Paula were planning to extend their stay in the Azores well into the new year (2018), she and Eddie sought access to Maria’s home to collect more of her things. Without a key to the house, they engaged a locksmith to gain entry.
36I accept Linda’s testimony, which was supported by photographs, that upon entering Maria’s home for the first time in many months, she and Eddie were concerned with the uncleanliness of the home, and the many marijuana products found on the premises.
37Maria did not move back to her home after that. When Antonio and his family returned from Portugal in February 2018, Maria remained in the care of her daughters. Linda and Eddie and their families continued to provide Maria’s care, both directly and with the support of seniors’ daytime care programs during the week.
38Maria remained primarily in her daughters’ joint care, and lived with them in their homes, until her death on December 27, 2018.
Maria’s Financial matters:
39Maria’s income in the relevant final years of her life came from three main sources: her late husband’s pension; Old Age Security; and Canada Pension Plan.
40I accept Linda’s evidence and find that for the purpose of calculations in this judgment, Maria’s income was $1840 per month from April 2012 to December 27, 2018, a period of 6 years and 9 months (or 81 months).
41In support of her testimony, Linda introduced Maria’s TD bank account statements from January 2011 through to February 28, 2018; and also from the replacement TD bank account that she opened for Maria on February 28, 2018, at the time she closed Maria’s original account. The bank records were Exhibit 31 at trial.
42For clarity, the evidence supports a finding that Maria had only one TD bank account at the relevant period of time, and that her income from all sources was deposited into that account each month.
43Over the years relevant to this application, Maria’s finances were managed first by herself, then by Antonio as POAP, and in the last year of her life by Linda as Attorney for Property.
44I will refer to these three consecutive time periods over eight years as the Independent Maria Period (January 2011 to March 31, 2012); the Antonio POAP Period (April 1, 2012 to February 27, 2018); and the Linda POAP Period (February 28, 2018 to Maria’s death on December 27, 2018).
45Below is a description of the evidence and my findings regarding Maria’s finances in each period.
Independent Maria Period (January 2011 to March 31, 2012):
46A review of Maria’s account statements shows that when she lived alone in her home, up to April 1, 2012, Maria paid her own bills and attended her bank branch in person regularly. Her bank statements show that she arranged regular payment of the following six bills: Mississauga (property taxes), Rogers cable, Bell telephone, Peel water, Enbridge Gas, and Enersource Hydro.
47Although gas, electric and water bills fluctuated somewhat by season, and some bills were issued every second month, or quarterly, the bank statements indicate that these six bills averaged a combined total of $900 per month during the Independent Maria Period.
48Her children testified that Maria brought her passbook with her when she went to the bank. Her bank statements during the Independent Maria period shows that Maria typically withdrew $200 in cash from the bank twice each month, for a total of $400 in cash withdrawal. During this time, she also updated her passbook 3-4 times each month.
49Maria’s monthly expenditures during this period were $900 for the bill payments appearing on her bank statement, and a further $400 withdrawn in cash and used for miscellaneous household matters, for a total of $1300. She was, therefore, left with approximately $500 for any other costs, or for saving, at the end of each month.
50Linda testified that her mother did not need all her monthly income to pay her expenses, and that she always kept a savings balance in her account. Antonio disagreed, testifying that he always had to spend money from his pocket to look after Maria because her income could not cover her bills.
51I prefer Linda’s testimony to Antonio’s in this regard. I do so on the basis that her testimony is consistent with the bank statements, which show that in the Independent Maria period, Maria maintained a balance of several thousand dollars at the end of each month. It is also consistent with the calculation above, which results in approximately $500 left in the bank each month after Maria’s cash withdrawals and bill payments.
52I also consider the way the parties testified about finances. Linda’s testimony was careful, precise, and referred to supporting documentation which was admitted into evidence. By contrast, Antonio’s testimony about money was characterized by poor recall, generalizations, and lack of documentation in support.
53At the end of the Independent Maria Period, Maria’s bank statements confirm she had a balance in her account of $2,894.28.
54I therefore conclude on the evidence that before Antonio and his family moved in with her, Maria’s income was more than sufficient to meet her monthly expenditures.
The Antonio POAP Period (April 1, 2012 to February 27, 2018):
55This period commences April 1, 2012.
56This is the month that Maria was diagnosed with dementia. It is also around the time that Antonio’s family moved into Maria’s home after selling their own house.
57The evidence supports a finding that as of April 1, 2012, Antonio was assisting Maria with her financial transactions.
58I find that as of April 2012, Maria’s children were all aware that their mother was suffering from dementia. It was therefore incumbent on any of them using or accessing Maria’s money, to keep track of what they took and what it was spent on.
59I note that Linda testified that there may have been early dates on which money was removed from Maria’s account to the benefit of Antonio. Having considered the evidence on this point, however, I am not satisfied on a civil standard that Antonio controlled Maria’s money prior to April 1, 2012.
60Beginning in April 2012, Maria’s bank statements show fewer “passbook update” entries, suggesting she attended the bank in person less regularly than when she lived on her own. For example, there are no “passbook update” entries at all from April 27, 2012 to June 4, 2012. The bill payments for the various utilities, phone, cable, and taxes still appear on the bank statements as payments, but without the “passbook update” entry.
61This significant reduction in Maria’s bank visits and “passbook updates” is consistent with Antonio’s testimony that once he and his family moved in, they assisted Maria with day to day and personal care, and that he took charge of her financial matters as her Power of Attorney for Property, from that time forward.
62A review of Maria’s bank statements over the Antonio POAP Period support the following findings:
a. Passbook updates and cash withdrawals happened at the same time as when Maria went to the bank in person;
b. Passbook updates became irregular and less frequent each month beginning in April 2012, and ceased entirely within 20 months. The bank statements show no passbook update entries beyond the end of January 2014. This supports an inference that Maria had stopped doing her own banking completely by that time.
c. Antonio testified that he withdrew cash from Maria’s bank account during this period. The bank statements show the significant amounts withdrawn, sometimes exceeding her total income for the month (e.g. in November 2012, cash withdrawals from Maria’s account totaled $1950);
d. In August 2014, cash withdrawals from Maria’s account stopped. At this time, Antonio began transferring funds electronically from Maria’s account to his own TD account (Antonio’s account ended in “3838”).
e. For example, bridging a period of two months, on July 30 and September 26, 2014, Antonio transferred more than $4,900 from Maria’s account to his own. The statements do not support Antonio’s testimony that he redirected Maria’s funds to his own account in order to facilitate paying bills on her behalf, as Maria’s bank account for the same months shows that her account continued to be debited for the same categories of bill payments she had paid when living on her own: cable, telephone, water, property taxes, electricity and gas.
f. After Antonio and his family moved into her home, Maria’s monthly utilities costs increased: electricity and water increased to more than 4x the previous monthly cost. The Rogers cable bill doubled and subsequently increased even further. The full amounts of these increased bills continued to be paid out of Maria’s accounts for the majority of the Antonio POAP Period.
g. As noted above, the balance in Maria’s account at the beginning of the Antonio POAP Period was $2,894.28. By 2014, Antonio’s withdrawals had reduced the balance to less than $400.
h. By 2015, Antonio systematically transferred Maria’s income into his own account within a day of its arrival. The largest monthly transfer was often more than $1400. He also made other smaller transfers out of Maria’s account, usually 3 to 5 times a month, which consistently kept her monthly balance below $50.
i. By 2016, with Antonio transferring Maria’s funds to his own account, the withdrawals were of such precise amounts that no more than $10 in balance was left in the account.
j. During the Independent Maria Period and under Antonio’s POAP direction until at least June 30, 2014, Maria’s Mississauga property taxes were always paid monthly from her account. This was by far her largest monthly bill payment: approximately $700 each month.
k. Linda testified that Antonio stopped paying the property taxes for Maria’s home in 2017. Her evidence was supported by the tax bill filed at trial.
l. The total of the 2017 tax bill supports an inference that Maria may have overpaid her property taxes for some years prior. It is not necessary to make a finding in this regard with respect to years prior to 2017, however I do find that by 2017, Antonio had control of Maria’s finances and was responsible for ensuring she paid her bills. In 2017, he failed to do so. The $700 Maria had paid toward taxes in the Independent Maria Period was not set aside for that purpose, nor were the taxes otherwise paid by Antonio.
63As referenced earlier, Antonio testified that when he was managing his mother’s finances, her income could not cover the bills. He explained during his testimony in chief that yes, he managed his mother’s finances from 2012 to 2017, and that he did so initially by withdrawing cash from her account, and then by transferring her money from her bank account to his own account to pay her bills and expenses.
64In explaining where Maria’s money went, and how it was not enough to pay the bills, Antonio listed several categories of expenditure. Specifically, he testified in chief that he transferred money from Maria’s account to his own “to maintain the household, to pay all household utilities, not much left for food, clothing, diapers – our vehicle, my son’s vehicle, the gas, insurance and any upkeep of the house.”
65Antonio admitted that he co-mingled Maria’s money with his own. He did not keep records at the time to track what parts of the household expenditures for food, transportation, or utilities, should be allocated to Maria. Nor did he track the amount by which utility consumption and costs increased after his family started living with Maria.
66Antonio’s evidence supports a finding that when he moved his family into his mother’s home and took control of her finances, he used her income and savings to cover as much of the larger household’s total utilities and food and gas as possible. Only when Maria’s money was exhausted did Antonio pay for expenditures himself.
67It is a reasonable inference that once Antonio, Paula, Kyle and Samantha moved in with her, Maria’s income of $1840 per month could not cover the expanded household costs.
68This finding contradicts Antonio’s assertion that he only spent Maria’s money for Maria’s benefit. In fact, he spent her money on not only her part of the household costs, but everyone else’s too.
69The evidence also supports a finding of inattentiveness to household costs and financial obligations: in the same year Antonio was transferring his mother’s income into his own account down to the last dollar, the year 2017, he did not use Maria’s funds to pay the property taxes as she had always done. He spent the money elsewhere as the property tax arrears accrued.
70Antonio offered no evidence that he ever calculated or reimbursed Maria for the additional cost of housing and feeding his family. The Court infers that whatever savings Antonio and Paula realized from no longer maintaining their own Mississauga home, they did not contribute a like amount toward Maria’s monthly utilities, and were able to use the funds for their new home abroad.
The Linda POAP Period (February 27 to December 27, 2018):
71Linda testified that when she and Eddie assumed responsibility for Maria’s full-time care in January 2018, she started doing Maria’s banking. At that time, she learned that Antonio had been making, and was continuing to make, online withdrawals of all of Maria’s money net of automatic bill payments. She also saw that Maria’s savings balance in the account was gone.
72The bank statements show that when Antonio was in Portugal starting in December 2017, he continued to transfer all of Maria’s income out of his account that month, and in January and February 2018. Antonio transferred her OAS and CPP to his account the same day they were deposited: on December 20, 2018 ($1475 transferred); January 29, 2018 ($1487); and February 26, 2018 ($1475). The balance left in the account after these withdrawals, totaling $4,437, was 60 cents.
73Linda therefore opened a new account on February 28, 2018, for Maria to which Antonio did not have access. The bank statements show the balance remaining in Maria’s account after the Antonio POAP Period, 60 cents, was transferred to her new account.
74Linda gave evidence and tendered supporting documentation to account for the funds she and Eddie spent of Maria’s during the Linda POAP Period. That accounting, supported by receipts and consisted with Linda’s testimony, is accepted by the Court. Despite a rigorous cross-examination, the only error Antonio’s counsel could point to in Linda’s scrupulous record keeping was a $45 ambulance fee which was paid by Antonio, and which Linda mistakenly recorded as paid by other means.
Issue 1 – Did Antonio use Maria’s money solely for her benefit?
75Respondent counsel agreed, and the Court accepts, that the applicable legal framework is as set out by the Applicants in their written closing submissions. The Substitute Decisions Act, 1992, S.O. 1992, c. 30 provides as follows:
An attorney for property owes a fiduciary duty to the donor of the power of attorney pursuant to section 32(1) and section 38(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. More specifically:
32(1) A guardian of property 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.
38(1) Section 32, except subsections (10) and (11), and sections 33, 33.1, 33.2, 34, 35.1, 36 and 37 also apply, with necessary modifications, to an attorney acting under a continuing power of attorney if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property.
Sections 32(1) and 38(1); Substitute Decisions Act
76The Ontario Court of Appeal has ruled that although all Attorneys are fiduciaries, where a donor of a Power of Attorney is mentally incapable, that Attorney’s fiduciary responsibilities are closer to that of a trustee than an agent. In making financial decisions for an incapable person, an Attorney’s “…powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person's benefit": Ferguson Estate Trustee v. Mew et al., 2009 ONCA 403, at para. 46.
77The law is, therefore, clear that the onus is on an Attorney to demonstrate that any funds belonging to the donor were used for her benefit. This obligation is heightened when a donor is no longer capable of managing money herself or of understanding what is happening with her finances.
78There is neither doubt on the evidence that Antonio assumed full control of Maria’s income and financial matters by April 1, 2012, nor that his mother became increasingly incapable of dealing with financial matters at all.
79In the Consent order of Trimble J. in February 2020, the Applicants and Respondents all agreed to exchange their accounting calculations and full supporting documentation explaining all transactions and handling of Maria’s money during their respective POAP Periods.
80Antonio did not do so. Further, the figures he wrote down and spoke about in his evidence were not accepted by the Court as evidence, as they were unsourced and unsupported by any documentation.
81I conclude that Antonio failed to fulfil his legal obligation as Power of Attorney for Property, which was fiduciary in nature, regarding his use of Maria’s funds. I further find that he failed to comply with the Trimble J. order in which he expressly acknowledged his obligation to do so.
82Antonio’s counsel repeatedly misconstrued the onus in his submissions and written argument: the obligation is on the Attorney to provide an accounting, that is, an evidentiary record supporting their contention that Maria’s money was used solely for her benefit. The obligation is that of a fiduciary, when handing the money of an incapable person.
83Antonio testified that he was ignorant of the obligation to account for how he spent Maria’s money, and that it was unreasonable for him to have kept grocery receipts. He submitted that comingling her funds with his own was simply expedient to help him pay the bills.
84The evidence with regard to the handling of Maria’s finances during the Antonio POAP Period supports a conclusion of unapologetic appropriation by Antonio of Maria’s money, for his own benefit.
85I have considered that neither the Respondent’s testimony, nor the documentary evidence, nor Respondent’s counsel’s submissions, could explain how Maria was demonstrably able to meet her own expenses each month with money left over, until Antonio moved in, after which she apparently could not.
86The law is clear that when a person is acting as an Attorney for property and personal care of an incapable donor, they have an appropriately high onus to demonstrate that they are making decisions and spending money for the benefit of the donor.
87In this case, the onus is particularly important, because Antonio co-mingled his mother’s money with his own funds during her incapacity. Further, he made expenditures for groceries and household items using Maria’s funds, without record or apportionment.
88Exhibit C at trial was a list prepared by Antonio of amounts and categories of expense. It was not accompanied by supporting documentation and was made a lettered exhibit for identification. Respondent counsel urged the court to find such a document amounts to a “passing of accounts” as required at law and by the Trimble Consent to produce Accounting.
89Such a submission is little short of absurd: by no stretch of the concept is an Attorney’s obligation to account discharged by offering a list of sums and annotations, without supporting documentation, created several years after spending the incapable person’s funds ostensibly for their benefit.
90I find not only that Antonio has failed to account for the use made of Maria’s finances when he was acting as her Power of Attorney for Property, but I find that in accessing her funds, he preferred his interests to hers. Such a conclusion is supported by the fact he let property taxes lapse by 2017 and retained the $700 a month his mother used to pay toward that expense.
91It is also supported by the absence of any evidence that his family, including his employed adult son, paid for the household utility and other costs which increased when they moved in.
92It is further supported by the evidence that Antonio continued to take every dollar from Maria’s account after she was no longer in his care, in December 2017, January 2018 and February 2018. During that time, Antonio was in Portugal, not looking after Maria, yet he transferred all her money to his account without paying her bills. This behaviour did not stop until Linda closed Maria’s account and moved her income deposits into a TD account he could not access.
93I reject the Respondent’s counsel’s submission that Antonio made “simple mistakes” and that the most that could be said of a critical nature is that “there may be issues with [his] client’s accounting.” I find that Antonio used his Power of Attorney for Property to access Maria’s account and to use her money as his own.
94Antonio’s actions and evidence, as well as his belligerent and defensive manner of responding to questions about money, support a finding that he was not merely careless – he took his mother’s money for his own benefit. Antonio took blatant advantage of his mother’s dementia to take all her savings and leave her with 60 cents when his sisters took over her financial care. His actions constitute a significant breach of his fiduciary duty to his mother as Attorney for Property.
Calculation of damages owed by Antonio
95If this were a case where the Power of Attorney for Property provided no services, yet took the donor’s money, the remedy would simply be to direct payment of damages in the amount of all the money taken.
96In this case, however, Antonio and his family did use some of Maria’s money for her own benefit: to pay some of her bills, and to buy groceries, toiletries, and household items she needed.
97The challenge for the Court is that due to Antonio’s failure to keep records and pass accounts, this calculation is necessarily imprecise. The Court considered the evidence before it to determine, based on the findings I have made, what order is appropriate.
98The Applicants ask the Court to add up all the amounts unexplained from Antonio’s withdrawal from Maria’s account. I find, on the evidence as summarized, that an appropriate calculation can be made by requiring Antonio to reimburse the estate for amounts in excess of the costs Maria incurred monthly ($500 left over at months’ end between April 2012 and December 2017; and an additional $700 per month for 2017 when she was not paying her usual property tax amount from her account, and Antonio did not otherwise pay the property taxes); and for the balance in Maria’s account at April 1, 2012 which he depleted; and for amounts Antonio transferred to his account after Maria moved in with her daughters (i.e. January and February 2018).
99I find that Antonio asserted but did not prove expenditures he claimed he spent to maintain or repair Maria’s home, except for a payment of $2000 to a neighbour for his share of rebuilding the fence, which I accept on evidence for reasons given during trial. That amount to be deducted from funds repayable by Antonio to the Estate.
100I find further that from January 2018 until he moved out of the home on closing in August 2020, Antonio owes occupancy rent for his use of Maria’s home. Neither party challenged the ascribed rent of $3,000 per month based on an earlier order of Emery J. in this application, and I accept that figure. 2/3 of that amount is to be repaid to the Estate from Antonio’s share.
Issue 2 - Did Antonio’s use of the property decrease the value of Maria’s home?
101The Applicants ask the Court to find that Antonio’s use of Maria’s property, materially decreased its value.
102In support of their claim under this heading, Linda testified that Antonio raised dogs in the house, grew marijuana, and failed to maintain the home. Linda tendered photographs depicting the interior of the home in what appeared to be states of disrepair and uncleanliness.
103Antonio generally disagreed with the Applicant’s claim and testified that he improved the property while he lived in it. He also testified that if it was not for his continued residence in Maria’s home until 2020, it would not have benefited from the rise in real estate values associated with the COVID-19 pandemic and would not have sold for such a high price as it did.
104Linda also testified, with invoices as support, that the waste and mess left behind at Maria’s home when Antonio was required to vacate by court order caused the Estate to incur the cost of Global Waste Service in the amount of $350.30 and a further $620.00 to remove garbage at the property.
105With respect to the devaluation of property, I find that the Applicants have not made out their claim on the evidence: no comparative valuations were tendered to show the value of the home if it had been listed for sale with or without the alleged damage caused during Antonio’s occupancy. Nor were there photos or other evidence to assist the Court to determine the state of the home when Antonio and his family moved in with Maria in 2012.
106Without such comparative evidence I am left without an evidentiary basis to grant the relief sought under this heading.
Issue 3 - Did Antonio account to the Estate for Maria’s chattels left in the home?
107The Applicants ask the court to order $50,000 in damages for chattels retained, destroyed or converted by Antonio that belonged to Maria. The most valuable on their list is a Chrysler New Yorker car. Other items listed by the Applicants as allegedly in the home are furniture, jewelry, a jukebox, and furniture and nostalgia items (e.g., a ceramic cookie jar made for Maria by one of the Applicants).
108The evidence is insufficient for me to make detailed findings on this issue. To the extent that Antonio was obliged to inventory and account for the items remaining in the home on Maria’s death, he certainly did not do so. His conduct frustrated the sisters who were required to get a court order to enable them to inspect the interior of the home. Antonio refused them entry but may have at one point stated that they could send an agent into the home.
109The most valuable items Antonio claims were not in the estate at Maria’s passing (jewelry) or did not belong to her (the vintage car).
110I cannot find that the vintage car belonged to Maria at the time she died. Antonio’s testimony, that she gave it to him after her husband died, is consistent with other evidence that she could not drive herself, and that she was close to Antonio, who had a son who also loved cars.
111With respect to the other chattels the Applicants allege remained in the home and were taken or disbursed by their brother, I cannot determine this without more evidence. The fact that the evidence is missing due to Antonio’s refusal to document or inventory the home after Maria’s passing supports an order which does not sanction such behaviour.
112I find that the sum of $50,000 was reasonable to reflect the value of the chattels the Applicants believed to be in the home, and that $20,000 reasonably accounts for the vintage car which was not part of Maria’s estate.
113I therefore grant relief to the Applicants under the heading in the amount of $30,000 for the chattels belonging to the estate on Maria’s passing. 2/3 of that amount is payable by Antonio.
Issue 4 – Antonio’s compensation:
114In his closing submissions, Respondent’s counsel asks the court to find that Antonio is entitled to per-hour compensation for over 11,000 hours of personal care provided to Maria between 2012 and 2017.
115The Applicants oppose Antonio’s claim on the following bases: that there is no claim for acting under Powers of Attorney for compensation before the court on behalf of any of the Applicants or the Respondent; and that in any event, Antonio testified that his wife Paula, not he, provided the majority of Maria’s care between 2012 and 2017. Paula is not a party, was not a named Power of Attorney, and has advanced no claim on her own behalf.
116I note as a matter of law that the Substitute Decisions Act provides for compensation to Power of Attorney for Property services, but does not speak to personal care compensation.
117Antonio’s counsel relies on an endorsement by DiLuca J. in Re Daniel Estate, 2019 ONSC 2790 as authority for per-hour compensation for personal care services provided by Antonio to Maria.
118I accept that Re Daniel Estate cites with authority the proposition that Power of Attorney for Personal Care services can be compensated by an estate on an “adequate record” [at para. 26]. In that case, the application was unopposed, and indeed the incapable individual was “mentally sharp” and in agreement with the compensation claimed by her caregivers. The question for the court was the adequacy of the record.
119On this application, monetary compensation to Antonio is opposed by Linda and Eddie. Even if I were to find Antonio’s compensation claim to be properly before me, the record is simply not adequate. That is, Antonio testified that he was home on disability throughout the time he lived with his mother and assisted her, and his wife Paula did not work outside the home. I cannot find that they were doing something other than keeping Maria company and caring for her as one family member to another during that time, nor can I determine who did what.
120The evidence of Maria’s needs was that she was able to eat and dress and care for herself through much if not most of the years without significant assistance from Antonio or others. She needed help with getting to the doctor, or to do shopping, and could no longer cook or do laundry.
121Eventually, for her safety, Maria could not be left alone in her home. I have found that Antonio and Paula chose to move in with Maria and live with her when they were not in Portugal. The arrangement was to their benefit as well as Maria’s. In such interwoven factual family circumstances, I conclude that the evidence does not support a claim for per-hour compensation as sought by Antonio.
122Antonio admitted in cross-examination that he had never paid rent to Maria, and claimed that she had never asked him to do so. I accept that she did not ask him, however in such an informality of relationship, if it was acceptable to Antonio not to offer to pay rent, it was equally acceptable that when he and Paula were willing to do so, Maria accepted their care assistance likewise. There is no evidence that Antonio or Paula ever asked Maria for compensation for caring for her.
123Indeed, when Linda suggested it was too much and Maria might be better off in a care facility, Antonio disagreed strongly. There is no evidence he proposed payment for personal care at that time either.
124I find that the informality of arrangements was beneficial to Maria and to Antonio and his family. By living with Maria in Mississauga, they lived rent free, and were able presumably to put extra money toward the Portugal home they were building.
125Further, Linda and Eddie supported the arrangement by providing weekend and respite care when Antonio and Paula went to Portugal.
126All in all, between them, Maria’s children were able to keep her living with them, rather than in long term care, until the end of her life.
127Therefore, it is impossible to even calculate what, if any, compensation could be payable, or whether Antonio even properly carried out his duties as attorney for property or personal care.
128If I had found a quantifiable personal care claim, which the evidence does not enable me to find, I would then have to consider the breach of fiduciary duty to account for use of finances.
129Having found no quantifiable claim, I am left to consider the value to Maria of Antonio and his family living with her in her home for six of the last seven years of her life. In this regard I consider Linda’s evidence that she and Eddie worried about how tired Antonio and Paula seemed in Maria’s later years when they were caring for her. Linda testified that she raised the topic of Maria moving into a care facility. Antonio’s view was that it would “kill” Maria not to be cared for by her family.
130Although Antonio and Linda and Eddie had different perspectives on their mother’s care, it is to their credit that among the three of them, they managed to keep Maria in their collective care until the end of her life. I find that in order to make that happen, Antonio and Paula had to live in the house with Maria, and Linda and Eddie had to provide weekend and vacation respite care.
131By doing so collectively, all the parties prevented a situation where Maria would have spent her last years in a care facility, potentially at a far greater financial cost, and further from the family she loved.
132In these circumstances, I conclude that Antonio and Paula were compensated for their care for Maria, which began as companionship but became more intensive over time, by paying no rent to live in her house.
133In conclusion on this issue, I find that Antonio was adequately compensated by Maria who provided him with free accommodations for him and his family while they cared for her for the period of over five and a half years, from April 2012 to the end of 2017.
134Claim for additional compensation dismissed.
Issue 5 – Should Antonio be removed as Estate Trustee?
135The Applicants seek removal of Antonio as Estate Trustee. The Applicants seek a finding that Antonio breached the fiduciary duties that he owed to Maria and to Maria’s Estate. If such a finding is made, then it would be appropriate to remove Antonio as Estate Trustee. Antonio does not dispute the court’s inherent jurisdiction to remove trustees but denies that there is no basis for his removal as he has not breached his fiduciary duties to the Estate. See: Radford v. Radford Estate, 2008 CanLII 45548 (ON SC).
136In considering a request to remove a trustee, the authorities place the emphasis on the future administration of the estate, and the risks to which it will be exposed if the trustee remains in office. The question is whether the trust estate is likely to administered properly in accordance with the fiduciary duties of the trustee and with due regard to the interests and welfare of the beneficiaries. See: Radford, at para. 106.
137It is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to remove trustees. The acts or omissions must be such as to endanger the trust property or to show a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity. See: Radford, at paras. 104-105.
138Friction between co-trustees is likely to warrant the removal of either or both of them because it is prone to impact the decision-making process. However, there is a more remote likelihood where the friction is between a trustee and a truculent beneficiary. In either case, the friction must be of such a nature or degree that it prevents, or is likely to prevent, the proper administration of the trust. See: Radford, at para. 113.
139It was evident from the evidence at trial that there was little consensus between the siblings on any matters touching upon the welfare of Maria or Maria’s Estate. My conclusions on Issues 1-3 above are that Antonio breached his duties as Attorney for Property and as Trustee failed to account for his use of Maria’s money, and as Estate Trustee.
140The Applicants submit that the friction between the parties is of such a nature and degree that it will prevent the proper administration of the trust should Antonio not be removed as Estate Trustee.
141For the reasons given, I find that it is appropriate to grant the relief requested in removing Antonio as Estate Trustee.
TERMS OF FINAL ORDER
Order to issue as follows:
142Antonio Ventura shall be removed as Estate Trustee; a Certificate of Appointment of Estate Trustee to issue appointing Carmelinda and Eddie Trustees for Maria’s Estate;
143The Estate shall be distributed as follows:
144From the proceeds of sale of Maria’s home shall be deducted the expenses itemized in the Applicants’ submissions as follows: expenses associated with the sale of the home (real estate commission, tax arrears, legal fees and disbursements for sale); and estate expenses (legal fees of preparation of terminal return; payment to Assumption Cemetery; funeral expenses reimbursement of Applicants per Trimble Order March 11, 2021; and estate administration tax).
145After payment of the above, the net estate proceeds shall be divided in to three equal parts, one part for each of Linda, Eddie and Antonio per the terms of Maria’s Will.
146From Antonio’s share shall be deducted the full amount of the following costs itemized in the Applicant’s evidence and submissions:
Paid to Vantage Law (clean up garbage at property) $ 620.00
Paid to Global Waste Service $ 350.30
Cost Order of McSweeney J. dated November 2018 $ 500.00
Cost Order of Emery J. dated June 15, 2020 $ 20,320.00
Cost Order of Bloom J. dated August 6, 2020 $ 2,500.00
Cost Order of McSweeney J. dated February 9, 2021 $ 1,864.50
Cost Order of Trimble J. dated April 26, 2021 $ 10,000.00
147Further deduction from Antonio’s share shall be taken for 2/3 of the following amounts owing to Maria (to Dec 27, 2018) and thereafter to her Estate.
148Damages for occupation rent in the amount of $3,000 per month for the period of January 2018 through August 31, 2020 (a period of 32 months), a total $96,000 of which 2/3 is $64,000;
149Damages re: Maria’s chattels: $30,000, of which 2/3 is $20,000;
150Damages re: use of Maria’s money comprised of the following: (a) $2,894.28, the balance in Maria’s bank account at April 1, 2012; (b) $500 per month April 2012 to December 2016 (68 months); (c) a further $700 per month for 2017 (12 months) in which Maria’s income was transferred to Antonio without payment of property taxes; (d) funds transferred from Maria’s account in January ($1487) and February 2018 ($1475); (e) credit on the above amount shall be given to Antonio for the two expenditures proved on the evidence at trial, specifically for the ambulance fee of $45.00 and for fence replacement $2,000, a total credit of $2,045.00.
151Pre-judgment interest on the above amounts pursuant to Section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;
COSTS:
152This application should not have been necessary. All parties acting as Powers of Attorney for Property were required by law to account to any dealings with her property. This application was required to bring resolution to the questions of what Antonio did with Maria’s money and Maria’s property.
153Despite the obvious benefit to the parties of resolving this matter, the application required a hearing. The videoconference hearing took the better part of five days, including final submissions.
154I find on the evidence that not only did Antonio fail to account for his actions at the time he took control of his mother’s finances, in or about 2013, but he failed thereafter to do so when requested by his sisters, and when ordered by the Court.
155By failing to account for his actions, Antonio not only breached his fiduciary duties to Maria and thereafter to the Estate, but he left his sisters to cobble together evidence and argument to put the issues before the court for determination. Having commenced the application, Antonio contested every step taken, obtained multiple adverse costs awards against him, yet persisted in denying his legal obligation to account, arguing that the Applicants should be required to prove that he benefited from Maria’s money, not the reverse.
156In these circumstances costs are appropriately fixed at a substantial indemnity rate.
157Substantial indemnity costs claimed by the Applicants total $197,027.48.
158In considering cost quantum, I have reviewed the cost outline filed by the Applicants. Hourly rates charged are reasonable for senior counsel, junior counsel, and law clerk.
159I have considered the cost factors in rule 57(1). In this case, the application was necessary, and the issues were certainly important. The Respondent’s obdurate failure to comply with his obligations as fiduciary, and with the consent Trimble order, protracted the proceeding significantly.
160However, the legal issues were straightforward: it was the financial details that required careful review of bank statements. That said, the documentary record was not particularly extensive.
161I do not take issue with the steps required to bring the matter for hearing, nor with the disbursement total.
162However, I note that as a matter of cost-effective staffing allocation, here a lawyer has junior counsel and a very experienced law clerk on a matter of this nature, the senior role at the highest rates is appropriately allocated to the highest value work. In this case Applicants’ counsel claim a total of 219.1 senior lawyer hours to 116.5 junior lawyer hours.
163In particular, I have some difficulty with 78.8 senior lawyer hours solely for “Correspondence/Telephone calls” and over 100 total lawyer hours spent on “Affidavit of documents/accounting/document review.”
164I also consider that over $34,000 in costs has been separately ordered payable by Antonio to the Applicants for several of the steps necessitated by his protracting the resolution of this matter.
165I consider that as a matter of success, the Applicants have been substantially successful. Antonio’s claim for monetary compensation for personal care was dismissed.
166Having considered the above factors, I fix costs of the application payable by the Respondent Antonio to the Applicants in the amount of $120,000.00 inclusive of fees, disbursements, and taxes.
167This amount shall be paid in full, from Antonio’s share of the estate.
168It is further appropriate in the circumstances Antonio’s breach of his duties as Attorney for Property to account to Maria and to the Estate, that he bear his own costs. Antonio’s costs shall not be payable by the Estate.
McSweeney J.
Released: November 15, 2022