COURT FILE NO.: CV-22-703 DATE: 20230302

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Dawn McKenzie in her capacity as Power of Attorney for Property and Power of Attorney for Personal Care for Raymond Morgan Applicant

– and –

Wendy Morgan Respondent

COUNSEL: Arash Jazayeri, for the Applicant Peter Card, for the Respondent

HEARD: October 6, 2022, with supplementary submissions completed November 4, 2022

REASONS FOR DECISION

FRASER J.:

A. Nature of the Application

[1] This Application is about whether Dawn McKenzie, in her capacity as Power of Attorney for Property, can sell one of Raymond Morgan’s three properties, a property in Barrie, Ontario (the Springdale property). She states that the sale is necessary to support the Respondent, Raymond Morgan, her father.

[2] While this would normally be within Ms. McKenzie’s power as Attorney for Property under the Substitute Decisions Act, 1992 (SDA), Mr. Morgan gave a life leasehold interest in the Springdale property, in favour of the Respondent, Wendy Morgan, in his Last Will and Testament.

[3] Mr. Morgan is 85 years old. He has been diagnosed with dementia. He has been found incapable with respect to placement in a long-term care facility. There do not appear to be any other findings of incapacity within the meaning of the Health Care Consent Act, 1996 or the Substitute Decisions Act, 1992 (“SDA”). The record before me reflects that he requires considerable assistance with most activities.

[4] Ms. McKenzie is one of Mr. Morgan’s five children. She states that she and her partner operate a successful siding and roofing business. She also runs a business called Elite Health and Wellness. She describes this as a business where people come to her, and she gets paid to help them get healthy.

[5] Ms. McKenzie once held a power of attorney for personal care and of property jointly with her twin sister Lynne Dickson. They became embroiled in an acrimonious, protracted, and expensive legal dispute which ultimately settled. The settlement resulted in a Court Order dated February 2, 2022, as it came before a different judge of this Court for approval. The Office of the Public Guardian and Trustee (“PGT”) took no position on the settlement. As part of the settlement, Lynne resigned as co-Attorney for Property and Personal Care.

[6] While that Application settled, the acrimony remains.

[7] The Respondent Wendy Morgan is 82 years old. She bears the same last name as Mr. Morgan because she was married to his brother, the late William Morgan (Bill). They divorced. She is the aunt to Raymond’s children. After Raymond Morgan’s wife died, she and Mr. Morgan became romantic partners, although the Applicant disputes the timing about when the relationship started. Ms. Morgan claims to be Raymond Morgan’s common law spouse, which Ms. McKenzie contests.

[8] Ms. Morgan states that she and Mr. Morgan shared 18 years together, sharing time at both the Springdale property, a property in Bracebridge where Mr. Morgan now resides, and winters in Florida as well as family holidays, vacations to England, Turkey and Caribbean Cruises. The neighbours and family members swore affidavits in this proceeding and generally support her and the idea that Ms. Morgan and Mr. Morgan were a couple.

[9] Mr. Morgan proposed, and she wore the engagement ring. They did not legally marry. Mr. Morgan put her name on the family tombstone.

[10] Ms. McKenzie is critical of Wendy Morgan and her dislike is apparent. She states that Wendy is “sadly, entirely opportunistic, callous and a downright liar.” Her contempt for Ms. Morgan was also apparent when she was cross-examined on her affidavit.

[11] In her affidavit, sworn prior to her retaining counsel, Ms. Morgan states that Ms. McKenzie suffers from “alcoholism, extreme violence, aggression and abusive behaviour towards others”. Ms. McKenzie states that she last drank in March, 2012.

[12] Under the February 2, 2022 Order, the Court approved the settlement which arranged how Mr. Morgan’s affairs were to be managed. The Applicant and her husband would be entitled to live rent-free with Mr. Morgan at his Bracebridge home and Ms. McKenzie would be paid $5,500.00 monthly out of Mr. Morgan’s Estate to be his caregiver. These funds did not include expenses relating to Mr. Morgan.

[13] Ms. McKenzie now seeks the Court’s direction because she claims that Mr. Morgan is not sufficiently liquid to pay her caregiving fees or sustain his needs. The caregiving expenses paid to Ms. McKenzie and the legal costs connected to the February, 2022 Order contribute significantly to the liquidity problem.

[14] Ms. Morgan lives at the Springdale property under a tenancy agreement that she made with Mr. Morgan.

[15] Under the April 2, 2018 Residential Rental Agreement (the Tenancy Agreement), Ms. Morgan pays $800.00 monthly in rent. This document was prepared with the assistance of a lawyer and lists Ms. Morgan and the Tenant and Mr. Morgan as the Landlord. It contains the following terms:

2. TERM: Landlord leases to Tenant and Tenant leases from Landlord the Premises beginning on March 11, 2015 (the “Commencement Date”) and continuing indefinitely as a monthly tenancy (“the Term”).

3.1 RENT. The rent shall be EIGHT HUNDRED DOLLARS ($800.00) per month and shall be due and payable on or before the first day of each and every month of the Term.... Notwithstanding the provisions contained in the Last Will and Testament of the Landlord to the contrary, the Tenant’s obligation to pay rent as set out herein shall survive the Landlord’s death. The foregoing sentence shall apply to any other residential lease between the Tenant and Landlord except if expressly agreed by the parties in writing otherwise.

[16] Mr. Morgan made a provision for Ms. Morgan in his Will. His Last Will and Testament executed April 25, 2018, contains the following provision relating to the Springdale property:

I GIVE all my property wheresoever situate, including any property over which I may have a general Power of Appointment, to my trustees upon the following trusts, namely,

(b) to permit Wendy Morgan to continue to reside at my home at 81 Springdale Drive, Barrie, Ontario, for the rest of her life, or until she chooses to move out, pursuant to the terms of a Residential Rental Agreement dated April 2, 2018. Upon Wendy Morgan moving out of the property, or dying, the house will form part of the reside (sic) of my estate and be dealt with as part thereof.

[17] Mr. Morgan’s Will effectively gives Ms. Morgan a life leasehold interest in the Springdale property.

[18] Also on April 25, 2018, Mr. Morgan also executed a Power of Attorney for Property and a Power of Attorney for Personal Care appointing the Applicant and her sister Lynne Dickson as co-attorneys. Lynne has since resigned pursuant to the minutes of settlement.

[19] In late May, 2022, with no notice to Ms. Morgan, and with no consultation with other family members, Ms. McKenzie arranged for the Springdale property to be listed for sale, as well as a “Coming Soon” sign to be placed on the Springdale property in preparation for it being listed for sale.

[20] Ms. Morgan refused to have the realtor show the property or cooperate with the sale. Ms. Morgan wants to remain at the Springdale property and Ms. McKenzie says she needs to sell it to keep Mr. Morgan sufficiently liquid and satisfy his debts.

[21] On June 2, 2022, Ms. McKenzie commenced this Application.

[22] Sections 36 and 35.1 of the Substitute Decisions Act, 1992, S.O. 1992, c.30 (SDA), prohibits of a guardian of property and an attorney for property from disposing of property that is the subject of a specific testamentary gift in the person’s will unless it is necessary to comply with the guardian’s duties or unless it is a gift of the property to the person entitled to receive it under the will and the gift is permitted under s. 37 of the SDA.

[23] Ms. McKenzie now seeks an order permitting her to sell the Springdale property and evict Ms. Morgan. She also seeks an order that Ms. Morgan repay $10,000 received by her by cheque signed by Mr. Morgan dated November 21, 2019.

[24] After the close of submissions, Ms. Morgan sought to re-open her case so that I could receive the Affidavit of Daniel Morgan sworn October 18, 2022.

B. Issues

[25] To determine whether the Applicant can sell the Springdale property, I must examine:

(a) Whether Ms. Morgan can re-open her case to permit the filing of the Affidavit of Daniel Morgan;

(b) The statutory framework governing the disposal of property that is the subject of a specific testamentary gift;

(c) Whether the sale of the Springdale property is necessary for Ms. McKenzie to fulfill her duties as Attorney for Property;

(d) Whether Ms. Morgan should be ordered to repay $10,000.00;

(e) Whether this Court can address the concerns raised by numerous family members about Mr. Morgan’s well-being on this Application.

[26] In order to consider these issues, it is first necessary to understand the family and procedural backdrop for this matter coming before me.

C. History

[27] Mr. Morgan’s family is one which was fractured before Raymond’s health deteriorated in recent years, but wholly cleaved with in-fighting over care for Raymond, who now has dementia. While this background is important to understanding how this matter came toward me, it is not the issue which I must decide. It is important to understand the present predicament.

(i) The First Application

[28] Mr. Morgan’s wife passed away in 2003. She and Mr. Morgan had five children who are now adults: the Applicant, Lynne Dickson, Susan Bierness, Rae Morgan and Daniel Morgan. The Applicant and Lynne Dickson are twins and the eldest children. Daniel Morgan and his father had a falling out many years ago and became estranged.

[29] Rae and Mr. Morgan were estate trustees for the late Mrs. Morgan. In 2014, according to an affidavit sworn by Rae, Susan and Rae were appointed Mr. Morgan’s Attorneys for Property and Personal Care. Mr. Morgan also prepared a Will in 2014. According to Rae, the 2014 Will contained the same provision regarding Wendy Morgan’s ability to stay in the house.

[30] Rae states that in 2018, Mr. Morgan asked her to take him to a lawyer. The suggestion made then was that Mr. Morgan would prepare a lease which together with his Will would protect Wendy.

[31] In March 2018, there was a family meeting. Rae made a proposal to care for Mr. Morgan, who was then deteriorating. An argument ensued and the Applicant was asked to leave Rae’s house.

[32] By Powers of Attorney dated April 25, 2018, the Applicant and Lynne Dickson became Mr. Morgan’s Attorneys for Property and Personal Care.

[33] According to an email appended to the Affidavit of Rae Morgan and authored by Ms. Tinti, a lawyer, some time prior to May, 2018, Ms. McKenzie took Mr. Morgan and informed her that her father wished to change his Will. Ms. Tinti was of the view that he did not have the capacity to do so.

[34] On September 7, 2018, the Applicant and her husband moved into an upstairs unit at Mr. Morgan’s Bracebridge property. The Applicant claims that she and her partner did renovation work to live and be there to assist her father and that the value of the work was approximately $90,000.00. She states that Mr. Morgan did not pay her for the work, nor does she claim anything from him for it.

[35] The alliance between the twin sisters did not last. In or about October, 2019, conflict emerged. According to the Applicant, she and her spouse made plans to take Mr. Morgan to Florida. She gave the financial books and records to Lynne. Lynne then refused access to the Applicant and made attempts to evict the Applicant from the Bracebridge property. Lynne made plans for Rae to move in with Mr. Morgan.

[36] Rae did move in and lived with her father from early 2020 to June, 2021, when the Applicant evicted her.

[37] Lynne, Rae, Susan and Ms. Morgan are said to have made complaints to the police and Ms. McKenzie and her husband were charged criminally on January 23, 2021. Those charges were withdrawn on May 4, 2021.

[38] On March 26, 2021, the Applicant commenced the Application which resulted in the February 2, 2022 Order.

[39] During that dispute, Lynne thought it would be better for Mr. Morgan to receive care from professionals and moved him into a retirement home. That arrangement did not work out as the retirement home took the position that Mr. Morgan required more care than it could provide, and Raymond returned home.

[40] A long-term care placement was not explored although Mr. Morgan is eligible for long-term care and he was found incapable with respect to admission to a long-term care facility within the meaning of the Health Care Consent Act, 1996.

[41] Ms. McKenzie and Lynne settled their litigation. Lynne states now that she had no choice but to settle because she had no funds to pursue litigation. As a result of that settlement and on being advised that the PGT took no position in respect of the relief sought, on February 2, 2022, before another judge, the Court made an order governing the management of Raymond’s property and personal care. The terms of the Order are set out at Schedule “A” to these Reasons. While the parties did not provide me with a copy of the unreported endorsement ( Dickson v. McKenzie (February 2, 2022), Barrie, CV-21-447 (S.C.)), I have had the benefit of reading it. It is clear that the Court felt that one benefit of approving the settlement was that the litigation would end, and that Mr. Morgan would receive proper care.

[42] Under that Order, Lynne resigned as both Attorney for Property and Personal Care.

[43] The Order provided that Ms. McKenzie would be paid $5,500 monthly as a caregiver and that she and her husband would be entitled to live rent-free in Mr. Morgan’s Bracebridge home which has a separate apartment. Expenses for his care like food and medication are paid separately from his property.

[44] The parties also agreed to a visitation schedule and that formed part of the Order. I pause to note that this arrangement appears to be necessary to reduce friction between the warring family members. Mr. Morgan is not a prisoner in his home and the Applicant is not his ward. I appreciate that the Court was presented with a consent position between two parties, but Mr. Morgan did not consent to it. Nothing in the Order would prevent him either from receiving visitors when he wants or going where he wants.

[45] However, that settlement has put Mr. Morgan in debt to Ms. McKenzie (for unpaid wages) as he is not liquid enough to support the deal she negotiated. She claims that Mr. Morgan’s Springdale property must be sold.

[46] It is important to note that neither Ms. Morgan nor the other siblings were parties to this litigation.

(ii) This Application

[47] The Applicant commenced this matter on June 3, 2022. There were three appearances before I heard the matter on October 6, 2022. On June 17, 2022, Ms. Morgan appeared in person as she has little facility with computers. The Court only had confirmation of the record and the grounds for the Application but neither the Application Record nor the Supplementary Application were before the Court. The matter could not proceed as the Court did not have the materials. The matter was adjourned to July 8, 2022 to be spoken to or heard in person.

[48] On July 8, 2022, Ms. Morgan came to Court in person with a responding affidavit and sought a further adjournment to obtain counsel. She was supported by her friend Ms. Connie Campbell. However, because of a nationwide Rogers outage, the matter could not commence until late in the day. I ordered that the matter be adjourned again and, on consent of the parties, added Raymond Morgan as a party, and directed that my Endorsement be served on the PGT.

[49] On the July 8, 2022 appearance, I ordered that the PGT be served with my Endorsement. This did occur and Applicant’s counsel and counsel for the PGT spoke. The PGT’s correspondence confirming that conversation is in evidence. However, it appears that the PGT did not appreciate the nature of the conflict in this Application as is evident by their correspondence:

You have advised me that your client is the attorney for property pursuant to a power of attorney document which was previously confirmed by Court Order. She is the decision maker for her father, Raymond Morgan.

You have indicated that your client is applying to court for approval to sell a property owned by Mr. Morgan. This is opposed by Wendy Morgan.

As this is a private dispute and as Mr. Morgan’s interests are represented by his daughter, via a power of attorney, there is no role for the PGT at this time.

The purpose of section 3 counsel is to represent alleged incapable persons in proceedings under the Substitute Decisions Act, 1992. As Mr. Morgan’s interests are represented by your client, and her authority is not in dispute in the current proceeding, there is no need to appoint section 3 counsel.

As this does not relate to who will act as Mr. Morgan’s attorney or guardian and as there is no need to appoint s.3 counsel at this time, I will now close my file. If the matter of section 3 counsel or who should be making decisions for Mr. Morgan arises, please notify me immediately.

[50] On August 23, 2022, the parties appeared before Justice Casullo who adjourned the matter to October 6, 2022 on terms.

[51] The matter came before me on October 6, 2022 and was argued over the course of a full day. Further submissions were made after the Respondent sought to re-open her case to tender new evidence after the matter was argued. I allowed submissions on that point which were completed on November 4, 2022.

D. New Evidence

[52] After the hearing of argument, Ms. Morgan’s counsel uploaded further evidence and asked the Court to consider it. He thought that the Applicant had uploaded new evidence. Counsel for the Applicant had uploaded only a list of Caselines references relating to pages he had referred to in reply, which I had requested of him.

[53] The Respondent’s counsel wrote to me, copying the Applicant’s counsel and the Applicant accused him of improperly communicating with the judge.

[54] I allowed the parties to tender submissions on whether I should receive this evidence.

[55] When the Respondent provided these further submissions, she exceeded the page limit that I set and then made further submission on the main issues, renewed a request for visitation with Mr. Morgan, and spoke to the new evidence and the request to re-open. The request for a visit is an issue that has been before me since the Applicant first appeared before me on July 8, 2022, as the Respondent addressed me personally about her desire to see Mr. Morgan.

[56] The Respondent noted that the submissions were necessary as some of the Applicant’s answers to undertakings came only at 11:18 p.m. on the eve of the hearing.

(i) Test for Re-Opening

[57] The Applicant objects and argues that the Respondent should not be permitted to re-open her case. The Applicant states that the Respondent has abused the process by uploading a single-spaced document despite my direction and by making use of the opportunity to make further submissions resulting in unfairness. She relies on R. v. Hayward (1993), , 86 C.C.C. (3d) 193 (Ont. C.A.), which sets out that in the criminal context, the Court must look at the relevance, the effect on the orderly conduct of the trial and, most fundamentally, whether the other party will be prejudiced.

[58] The Supreme Court of Canada address the test for re-opening a case to admit fresh evidence in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59. At paras. 20, 62 and 63, the Court endorsed the use of the longstanding test set out in Scott v. Cook, (1970) , 2 O.R. 769 (HCJ):

(a) Would the evidence have changed the result? and

(b) Could the evidence have been obtained by reasonable diligence before the trial?

[59] I note that Sagaz dealt with a case where judgment had been delivered. However, similar considerations remain. Litigation must end. It is not fair to the other party to permit the filing of evidence after argument unless there is a compelling reason that can be supported by these Scott/Sagaz factors.

(ii) Nature of the Proposed New Evidence

[60] The evidence in question is the Affidavit of Daniel Morgan (Dan) sworn October 18, 2022.

[61] On May 2, 2021, Dan Morgan swore an affidavit in support of Ms. McKenzie in the Lynne litigation. The Applicant tendered it as part of these proceedings in the Applicant’s Fifth Supplementary Affidavit. Dan noted his estrangement from his father for the last twenty years. He lives in Tarpon Springs, Florida. The affidavit details his view of Lynne’s difficulties managing money which he alleged including gambling problems so severe that they lead to the loss of her home. His affidavit detailed that he had employed both Lynne and Dawn in his business and found Dawn to be honest and reliable.

[62] In his affidavit of October 18, 2022, Dan Morgan supports Ms. Morgan. He notes his father’s close relationship with her and believes that his father would want to see her. He thinks because of the years of in-fighting, it would not be in the best interest of Mr. Morgan for his sister Ms. McKenzie to be present during the visit.

[63] He offered to pick up his father to drive him to Purbrook, to visit with Wendy and Rae and Ms. McKenzie became agitated and refused, saying that her father would become agitated without her. He notes that Ms. McKenzie is estranged from most of the family because she has a bad temper and says cruel things when she is angry.

[64] He notes that his sisters Susan and Rae are the executors in his father’s Will, and they were not consulted in the settlement that led to the February 2, 2022 Order.

[65] He then notes other family frustrations with the February 2, 2022 Order.

[66] Dan Morgan states that he had occasion to visit his father a few times over the past summer. He notes that Ms. McKenzie is living beyond the means of the Estate. He believes that she has his best interests at heart. He argues that the Purbrook property should be sold, and that the Applicant should explore a reverse mortgage on the Bracebridge property. He notes that his sister Rae and his father had a special interest in the Purbrook property and that it should be sold to her as she wishes to buy it.

(iii) Should the Case be Re-opened and Evidence Received?

[67] The only matter before me is whether it is necessary for the Applicant to sell the Springdale property. This is not a free-ranging examination of the merits of Raymond’s present situation or an opportunity for me to pronounce on how the Applicant is managing the property and personal care of Mr. Morgan.

[68] In my view, I should not permit the Respondent to re-open her case to receive this evidence. It is information that could have been obtained with reasonable diligence and it is not relevant to the single issue before me.

[69] It does raise concerns about issues about Mr. Morgan that should not be ignored. These include that Mr. Morgan may be being denied visits with family and that he has suffered weight loss under the care of Ms. McKenzie as Mr. Dan Morgan describes him as being emaciated.

[70] I will address this further below.

E. The Statutory Framework

[71] I find that Mr. Morgan’s Will contemplates a specific testamentary gift in the form of a life leasehold interest to Ms. Morgan in the Springdale property. In order to determine whether an attorney for property can dispose of property that is the subject of a testamentary gift, one must first look to the duties generally and then examine the anti-ademption provisions of the SDA.

(i) Duties of Attorney for Property

[72] The SDA sets out the duties of an attorney for property by reference to the duties of guardians of property.

[73] Section 38 of the SDA provides that s. 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. This provision is disjunctive. These provisions apply where there is actual incapacity or reasonable grounds to believe that the grantor is incapable with respect to property (see McDougald Estate v. Gooderham, , at para. 49).

[74] The overarching duty is that the guardian of property is a fiduciary (Whittick v. Woodall, 2011 ONSC 557, at para. 23). Section 32 of the SDA provides:

(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.

(1.1) If the guardian’s decision will have an effect on the incapable person’s personal comfort or well-being, the guardian shall consider that effect in determining whether the decision is for the incapable person’s benefit.

(1.2) A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions.

(1.3) Subsection (1.2) does not apply in respect of a decision concerning the person’s personal care if the decision’s adverse consequences in respect of the person’s property significantly outweigh the decision’s benefits in respect of the person’s personal care.

(2) The guardian shall explain to the incapable person what the guardian’s powers and duties are.

(3) A guardian shall encourage the incapable person to participate, to the best of his or her abilities, in the guardian’s decisions about the property.

(4) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.

(5) The guardian shall consult from time to time with,

(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and

(b) the persons from whom the incapable person receives personal care.

(6) A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property.

(7) A guardian who does not receive compensation for managing the property shall exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs.

(8) A guardian who receives compensation for managing the property shall exercise the degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise.

(9) Subsection (8) applies to the Public Guardian and Trustee.

(10) A guardian shall act in accordance with the management plan established for the property, if the guardian is not the Public Guardian and Trustee, or with the policies of the Public Guardian and Trustee, if he or she is the guardian.

(11) If there is a management plan, it may be amended from time to time with the Public Guardian and Trustee’s approval.

(12) The Trustee Act does not apply to the exercise of a guardian’s powers or the performance of a guardian’s duties.

(ii) Anti-Ademption Provisions

[75] Where a Will contains a bequest that is not among the testator’s assets when he dies, the gift is said to have adeemed and it fails (McDougald Estate v. Gooderham, supra, at para. 1).

[76] Section 36 of the SDA changes that rule. It sets out consequences if a guardian of property disposes of property that is subject to a specific testamentary gift. It provides:

36 (1) The doctrine of ademption does not apply to property that is subject to a specific testamentary gift and that a guardian of property disposes of under this Act, and anyone who would have acquired a right to the property on the death of the incapable person is entitled to receive from the residue of the estate the equivalent of a corresponding right in the proceeds of the disposition of the property, without interest.

(2) If the residue of the incapable person’s estate is not sufficient to pay all entitlements under subsection (1) in full, the persons entitled under subsection (1) shall share the residue in amounts proportional to the amounts to which they would otherwise have been entitled.

(3) Subsections (1) and (2) are subject to a contrary intention in the incapable person’s will.

[77] Section 35.1 permits the disposable of when it is necessary to comply with the duties of the guardian. It provides:

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

(2) Subsection (1) does not apply in respect of a specific testamentary gift of money.

(3) Despite subsection (1),

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

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

[78] That language has been interpreted as encompassing prudent dispositions of specifically bequeathed property (McDougald Estate v. Gooderham, supra, at paras. 37-40).

[79] In Tattersall v. Baker, 2003 ONSC 22067, this Court authorized the sale of the incapable person’s home which was the subject of a specific testamentary gift in circumstances where there was a shortfall. The Court found that it was reasonable to sell the property as it generated a loss, and it was of no benefit to Ms. Baker.

[80] In order for these provisions to apply, Mr. Morgan must either have been found incapable or the Applicant must have reasonable grounds to believe that he is incapable with respect to property. If so, I must then examine whether the sale of the property is necessary. I address each of these below.

F. Does the Applicant have Reasonable Grounds to Believe that Mr. Morgan is Incapable with Respect to Property?

[81] I have not been presented with current assessments of Mr. Morgan’s capacity regarding his property or personal care. However, there is substantial information in the record that details Mr. Morgan’s health challenges.

[82] The record before me includes some information about Mr. Morgan’s capacity. It is important to pause and note that a person can be capable with respect to some decisions and incapable with respect to other decisions. For example, a person might be incapable with respect to a particular health care decision but capable with respect to their property.

[83] The evidence overall is that in 2019, Mr. Morgan’s mental health began to deteriorate such that there were concerns about his ability to manage his affairs. The Applicant and her sister Lynne assumed management of his affairs under the 2018 Powers of Attorney.

[84] On March 20, 2020, Judith Turner, the lawyer who drafted the current Will and Powers of Attorney, when asked to provide information to counsel for the Applicant, wrote back to him stating that she had met with Mr. Morgan, opined that he was not competent, and that she had no instructions.

[85] In May 2021, while at the retirement home, Mr. Morgan was assessed by the Local Health Integration Unit (LHIN) to determine his eligibility for long-term care. He was found to be incapable with respect to placement in a long-term care home within the meaning of the HCCA.

[86] The assessment notes reflect both his health challenges and his strengths. On May 10, 2021, RN Amy Wood noted in her assessment:

Patient now living in RH setting. Dau Rae and patient’s partner/friend alternate spending 10-12hr days with patient to provide supervision and socialization to patient RH is not secure and patient is at risk of wandering as he is quite new to the RH.

Patient requires assistance with all ADLs/IADLs due to dementia symptoms although he is physically quite healthy. No new behaviours noted, behavioural assessment reviewed. Patient has increased bowel incontinence overnight. Continues to use intermittent urinary catheter but this is to be changed to an indwelling catheter; appointment booked with urologist May 17/21. Patient’s speech is garbled and when asked questions he will begin talking about jobs he has worked on in the past. No meaningful responses formed by patient during this assessment; patient is not able to communicate regarding needs. Daughters try to figure out what patient needs through process of elimination. Patient is pleasant and cooperative, likes to be around others as he is quite sociable,

Plan: Awaiting LTC placement, Remains crisis priority as RH not able to meet his needs for care or safety. No change to service plan at this time.

[87] Further assessments were conducted in July of 2021. They detailed severe cognitive performance and communication issues and that Mr. Morgan needed step-by-step cueing and supervision for all his activities of daily living. At the time of the July, 2021 assessment, Ms. McKenzie and her husband were sleeping in the second bedroom on the main level of the Brofoco house.

[88] The LHIN encouraged Ms. McKenzie to arrange respite support. Ms. McKenzie retained Dr. Joel Sadavoy as part of the first Application. He wrote two letters.

[89] By letter dated May 5, 2021, Dr. Sadavoy answered several questions asked by the Applicant’s counsel. He noted that at the time of the assessment, he had not seen medical documentation regarding a diagnosis of dementia and he had not examined Mr. Morgan. This report is of limited assistance in understanding Mr. Morgan’s abilities. His report is critical of the assessments done by Dr. Liao and a occupational therapy assessment conducted by Heidi Hunter. Ms. Hunter assessed Mr. Morgan both in 2018 and 2021. Dr. Sadavoy formed his opinions based on the documentation provided to him by the Applicant and his assessment of Mr. Morgan.

[90] The Applicant asked Dr. Sadavoy to examine Mr. Morgan to opine on whether Mr. Morgan was receiving adequate care since his arrival back home on June 11, 2021. By letter dated June 25, 2021, Dr. Sadavoy noted that Mr. Morgan’s expressive ability was extremely limited and that he sat quietly throughout. He was in no visible distress. Dr. Sadavoy again based his opinion on information provided by the Applicant and her husband, which he found he had no reason to doubt. He found that Mr. Morgan was receiving adequate care at home.

[91] Dr. Sadavoy found that the home care environment “is realistic, supportive, caring and fully adequate for his dementia care needs at this time”. There are realistic contingency plans in place to ensure adequate care if he cannot be managed at home as the disease severity progresses. His caregivers are loving, well-motivated, using effective problem-focused coping and are knowledgeable about dementia care that was being provided to Mr. Morgan.

[92] In June, 2021, Ms. McKenzie hired Helen Smalley to assist with providing care to Mr. Morgan. On June 22, 2022, she swore an affidavit in support of the Applicant and noted the improvements in his general health. He was able to give directions to the Purbrook property, was able to toilet independently and do puzzles. She attached a picture of herself with Mr. Morgan on Dan Morgan’s boat taken in June, 2022.

[93] I note that by August 26, 2022, Ms. Smalley’s relationship with the Applicant had broken down. In a further affidavit sworn on August 26, 2022, Ms. Smalley stated that Ms. McKenzie has harassed her and her daughter on Facebook. She notes that Ms. McKenzie had not taken Mr. Morgan to a family doctor. She says that Mr. Morgan has lost a great deal of weight on the diet that Ms. McKenzie has him on.

[94] Ms. Smalley expressed two other concerns. First, Mr. Morgan is sometimes left alone and she is concerned because when he putters in the yard, he is close to the water and she is worried for his safety.

[95] She also expressed concern that sometimes Mr. Morgan will call out for Wendy (Ms. Morgan) stating:

When I was with him, Ray would repeatedly call out for “Wendy” sometimes mistaking me for Wendy. When he does so Dawn becomes angry and instructs Ray to “never mention that woman’s name again”. He talks about his kids often. He recognises them from the family photos around the house. He misses his children. Ever since I have been there he has not seen any of these other daughters (or granddaughters) that I am aware of.

[96] All of this information supports that the Applicant has reasonable grounds to believe that Mr. Morgan is incapable both with respect to his personal care and with respect to his property.

G. Is the Sale of the Property Necessary?

[97] The Applicant asserts that the sale of the Springdale property is necessary to support Mr. Morgan.

[98] In her June 2, 2022 affidavit, the Applicant notes that under the February 2, 2022 Order, her sister Lynne was awarded $40,000 in costs and she was awarded $110,000. She described the financial situation as follows.

[99] His assets are the Brofoco property where he resides, the Springdale property where the Respondent resides as a tenant, and a vacant lot on Purbrook Road in Bracebridge (the Purbrook property).

[100] The Applicant listed personal property worth approximately $120,000 including vintage cars, a Rolex and a diamond bracelet. He had term deposits totalling approximately $132,000 and in the amount of approximately $168,000. She noted that Mr. Morgan owed her $223,672.07 and that his income is approximately $26,200 annually from Old Age Security and Canada Pension Plan.

[101] She described his annual expenses as follows:

• $5,500 per month for his care giving costs totalling $66,000 for the year;
• $53,000 per year for disbursements (groceries, food, gas, utilities, medication, lawn care, snow removal, etc.);
• $793.02 per year for property tax on the Purbrook vacant lot;
• $3,815.36 per year for property tax on the Springdale property;
• $5,156.90 per year for property tax on the Brofoco Property;
• $28,000 - $47,000 on maintenance for the Springdale property based on 3% - 5% of the home value every year;
• $45,000 - $75,000 on maintenance for the Brofoco property.

[102] She believes that her father presently has a shortfall of $150,000 per year. At the time of swearing her June 2, 2022 Affidavit, she valued the Purbrook property at $650,000 and the Springdale property at $950,000.

[103] As of October 6, 2022, the Applicant stated that Mr. Morgan’s assets were:

• $81,454.73 in his chequing account at Kawartha Credit Union;
• the Brofoco property;
• the Springdale property;
• the Purbrook property;
• a Rolex watch; and
• a diamond bracelet.

[104] She notes that Mr. Morgan owes her least $64,000.

[105] By the time the matter was argued, she had sold the vintage cars for a great deal less than what she had previously estimated that they were worth. For example, she valued a 1937 Package at $30,000 and sold it for $10,000, she estimated a 1930 Buick Limousine was worth $26,000 and sold it for $10,000. She valued a Chevrolet truck at $25,000 and sold it for $2,500.

[106] The Purbrook property which she valued in June, 2022 at $650,000, she now states that this is worth $50,000.

[107] I accept that Mr. Morgan cannot support these claimed expenses on his present income, but I do not accept that these are his expenses. I have no confidence in Ms. McKenzie’s financial assessment and forecasting and I am concerned about decisions that she has made.

[108] First, knowing what litigation cost and knowing that resources were scarce, she listed the property that she knew was the subject of a testamentary gift without any consultation or planning with other family members. When there was an objection, she immediately applied to the Court, incurring legal fees which she expects her father to pay, knowing that he cannot afford to pay them without selling an asset.

[109] She negotiated a deal that her father cannot afford, to pay herself and live rent-free when she is living in what could be a rental unit on the property. I do not know what material was put before the Court to support the February 2, 2022 order, but I have no information that she has consulted a financial planner.

[110] It is clear that she painted a far rosier picture when she was seeking her costs in February 2, 2022. The Endorsement reflects that Lynne sought $68,167.74 and Ms. McKenzie $182,520 which the Court reduced as reflected in the Order. It is also clear that the Court had significant concerns about their claims for costs.

[111] Then, Ms. McKenzie provided information relating to Mr. Morgan’s expenses which are estimates and appear inflated or exaggerated. They are not supported by the documentation. Ms. McKenzie’s valuation of Mr. Morgan’s assets made in June are vastly different than what she stated they were in October.

[112] On two important issues regarding the assets, the vehicles and the property, her figures are not reliable.

[113] Ms. McKenzie refuses to discuss with her siblings other means by which to free up funds from Mr. Morgan’s assets. She has a duty to consult. Ms. McKenzie argues that the SDA only requires that she consult with supportive family members, and her family members are not supportive. I interpret ss. 32(4) and (5) as meaning supportive to the incapable person, rather than to the attorney for property.

[114] I have evidence that there are family members who have supported Mr. Morgan and would like to support him but their regular contact is impeded by the Applicant’s exercise of her discretion under the February 2, 2022 Order.

[115] In response to the Respondent’s argument that the Applicant should consider a mortgage on one of the properties, she states that this would create a loan at high interest rates that would only have to be paid back.

[116] She refuses to acknowledge that her father intended to provide support to Ms. Morgan and that she may have some entitlement to it. Ms. Morgan has commenced an Application in the Family Court which I am told has been held in abeyance pending the outcome of this Application.

[117] Ms. McKenzie refused to waive solicitor-client privilege on his behalf and this deprived me with the opportunity to see if his solicitor made any notes about his intentions regarding Ms. Morgan.

[118] This is important because in making his Will, it is possible that he told his solicitor that Wendy is his common law spouse or he might have otherwise described her. No motion was brought for me to order this because of the costs involved and the Respondent asks that I draw an adverse inference from her failure to disclose.

[119] The Respondent tendered evidence from neighbours who viewed Mr. and Ms. Morgan as a couple.

[120] While the Applicant states that she makes no claim for the work she did at the Bracebridge property, the Respondent’s material contains a letter from her counsel (the same counsel representing her in this litigation in her capacity as Attorney for Property for Mr. Morgan) to Mr. Morgan dated, December 11, 2019, claiming a constructive trust arising from the work they performed on the property. After the demand was made, the lawyer who drafted the attorney for property advised Ms. McKenzie that she must resign.

[121] There are other contradictions in her evidence which make me question her reliability and the reliability of her pronouncements on value of the assets, the state of Mr. Morgan’s expenses, and the necessity of the sale of the house. Despite Ms. McKenzie’s claim that the Springdale property is a drain, the Springdale property appears to carry itself with the rent that Ms. Morgan pays which covers the taxes.

[122] Ms. McKenzie is intemperate and her dislike for Ms. Morgan is apparent throughout her affidavits and her cross-examinations on them. I am not convinced that this does not motivate her decision-making.

[123] In terms of options, I understand that Ms. McKenzie believes that it is best for Mr. Morgan to remain in his home. However, if Mr. Morgan requires 24-hour care, he is eligible for placement in a long-term care home. There he would have access to medical, nursing, and personal support services. The co-payment for placement in a long-term care home is determined on income not assets, so would likely present an affordable option for Mr. Morgan (see O. Reg. 246/22 under Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Sched. 1). He could also be visited by all his family members, friends, and neighbours without there being conflict.

[124] This is a different option than a retirement home, where Ms. Dickson unilaterally attempted to place Mr. Morgan and which failed. Dr. Sadavoy recognizes this difference in his report.

[125] I am not saying that Mr. Morgan should be placed in long-term care. That is not before me. However, it does represent an option.

[126] There are other options. Ms. McKenzie told Dr. Sadavoy and representatives of the LHIN that she was living in the home with her father. Before me, she told me that she resides in the adjacent unit. Ms. Morgan claims that this unit could produce income if rented.

[127] Another option is for the Purbrook property to be sold. Rae Morgan wishes to purchase it. According to her, it is of sentimental value. It is landlocked and on a protected floodplain/wetland and many agree that it is not likely worth the value that Ms. McKenzie first placed on it.

[128] Given the problems associated with the reliability of Ms. McKenzie’s evidence, I am not able to conclude that the sale of the Springdale property is necessary. It would have been of assistance, if Ms. McKenzie would have answered her undertakings in a timely way so as to demonstrate the expenses associated with the properties. The article from the internet was of little assistance.

[129] For all of these reasons, I cannot conclude that the sale of the Springdale property is necessary for Ms. McKenzie to fulfill her duties.

H. The Allegation of Theft of $10,000

[130] Ms. McKenzie alleges that Ms. Morgan has committed the tort of elder abuse.

[131] The Applicant claims that when Lynne had control of Mr. Morgan’s affairs, Wendy received a cheque from her father dated November 21, 2019.

[132] In my view, this is not an issue that can be decided by way of application. It will need to be tried by way of action if the Applicant wishes to pursue it.

I. Concern for Mr. Morgan

[133] Many family members lined up behind Ms. Morgan opposing the Applicant’s approach to the management of Mr. Morgan’s property and personal care. Ms. Morgan has raised the issues of whether the Applicant is acting in accordance with her duties under s. 66 of the SDA. However, that issue is not properly before me. This Application concerns the interpretation of Mr. Morgan’s Will and the tenancy agreement.

[134] Those supporting Ms. Morgan have attempted to impugn the Applicant’s character and mental health. The Applicant has not held back on her negative view of various family members.

[135] None of this is helpful and the family is encouraged to work with a skilled mediator or facilitator to work through these issues to put Mr. Morgan’s interests first.

[136] However, it gives me cause to be concerned about Mr. Morgan. First, because he is isolated and the Applicant, who must exercise her duties towards him, is now in a financial conflict of interest because by virtue of the February 2, 2022 Order, Mr. Morgan is now substantially indebted to the Applicant.

[137] I have heard little about Mr. Morgan’s present wishes. It may be that he is not able to advise the Court about his wishes or to respond to the Application.

[138] There seemed to be disputes about visitation notwithstanding the February 2, 2022 Order.

[139] Rae Morgan swore an affidavit in support of Ms. Morgan. She previously lived at the Brofoco property with her father from June 2020 to June 2021. She has not seen her father in over a year. The last visit was when Mr. Morgan returned home from the retirement home. When she and her sisters tried to visit, they found her father not at home, a police officer present and the doors bolted shut, despite that she had being living there.

[140] She stated that in the three months prior to the date of the affidavit, she received a call from her father’s family doctor in Bracebridge, Dr. Chris LaJeunesse. Dr. LaJeunesse cancelled Mr. Morgan as a patient on their roster because of missed appointments.

[141] By her own admission, Ms. McKenzie takes Mr. Morgan to a naturopath but not to a medical doctor. She blames her sister Lynne for Mr. Morgan not having a family doctor. First, I am concerned that Mr. Morgan has not seen a family doctor. Ms. McKenzie has taken him to a naturopath only. However, Mr. Morgan is a person who is said to have dementia and has no family doctor or specialist care.

[142] I am also concerned that Ms. McKenzie and Ms. Smalley’s relationship has ended and with Ms. Smalley’s remarks about what happens when Mr. Morgan calls out for Wendy. Again, I am making no determination about whether Ms. Morgan is a common law spouse of Mr. Morgan as that is not before me. I encourage the Applicant to set a liberal schedule for visits with the family. The restrictive schedule agreed upon between the Applicant and Lynne does not serve Mr. Morgan well and does not appear to have fostered relationships between Mr. Morgan and his family members.

J. PGT

[143] Should this matter return before the Court, it may be necessary for Mr. Morgan to be represented by a litigation guardian as in this proceeding, he requires a representative with undivided loyalty. In my view, while a litigation guardian is unnecessary under Rule 7 where the issue is guardianship, there are some issues arising under the SDA where the person may need a litigation guardian.

[144] Subrules 7.01(1) and 7.01(2) of the Rules of Civil Procedure provide:

(1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.

(2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 to appoint a guardian of property or a guardian of the person may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise.

[145] In my view, the exception to the general rule that a party under a disability shall have a litigation guardian is in guardianship applications, where it is permissible not to have one.

[146] Given the nature of Mr. Morgan’s impairments, I do not believe that a s. 3 order for counsel would assist him, as even though he would be deemed capable of instructing counsel. In my view, this is case is like Dawson v. Dawson, 2020 ONSC 6724, where a litigation guardian is more appropriate than s. 3 counsel.

[147] Should the Applicant wish to renew her request to sell the Springdale property with proper accounts and having sought the opinion of a financial planner or other opinion on which this Court can rely, Mr. Morgan may require a litigation guardian.

K. Order

[148] I hereby provide the following directions to the Applicant:

(a) The Application to sell the property listed a paragraph 1(a) of the Application is hereby dismissed without prejudice to the Applicant to renew it with further and better evidence;

(b) Any return of the Application brought within this proceeding shall be brought before me to ensure continuity;

(c) The Applicant shall serve this decision upon the PGT;

(d) The parties shall provide their costs submissions within 30 days of this Order. Cost submissions are limited to three double spaced pages exclusive of supporting documentation such as dockets to be filed through the Portal and uploaded into Caselines. Counsel may also send a copy to my judicial assistant; and

(e) The balance of the Application is adjourned sine die.

Justice S.E. Fraser

Date: March 2, 2023

Schedule “A” – Terms of the February 2, 2022 Order

1. THIS COURT ORDERS AND APPROVES the Minutes of Settlement dated November, 2021 executed by Dawn and Lynne, attached hereto and marked as Schedule “A” pursuant to Rule 7 of the Rules of Civil Procedure.

2. THIS COURT ORDERS AND ADJUDGES that Lynne shall resign from her role as a co-attorney for property for the Respondent, Raymond Morgan (“Raymond”) pursuant to the Continuing Power of Attorney for Property executed by Raymond dated April 25, 2018 in favour of Lynne and Dawn, jointly, with right of survivorship and such resignation shall become effective upon Lynne’s receipt of the sums described at paragraph 18 payable from the property of Raymond. For clarity, once Lynne receives the sums contemplated by paragraph 18 below, Lynne shall no longer be an attorney for property for Raymond.

3. THIS COURT ORDERS AND ADJUDGES that Lynne shall resign as a co-attorney for personal care for Raymond Morgan pursuant to the Power of Attorney for Personal Care executed by Raymond Morgan dated April 25, 2018 in favour of Lynne and Dawn, jointly and severally, and such resignation shall become effective upon Lynne’s receipt of the sums described at paragraph 18 payable from the property of Raymond. For clarity, once Lynne receives the sums as contemplated by paragraph 18 below, Lynne shall no longer be an attorney for personal care for Raymond.

4. THIS COURT ORDERS that Dawn, upon the resignation of Lynne as co-attorney for property and personal care for Raymond as contemplated above, shall be entitled to payment of the gross, all-inclusive sum of $5,500.00 per month, from Raymond’s property as caregiving compensation which sum shall be paid while Raymond continues to reside at the property municipally known as 50 Brofoco Drive, Bracebridge, Ontario (the “Property”) under Dawn’s care (the “Caregiving Compensation”).

5. THIS COURT ORDERS that while Raymond resides at the Property, should any professional care, personal support worker(s), nurse(s), professional caregiver(s) and/or professional caregiving assistance be required to assist Dawn with Raymond’s care either on a one-time basis, ongoing basis, or otherwise at all, any additional care required for Raymond shall be paid by Dawn from the Caregiving Compensation. For clarity, the total cost of Raymond’s caregiving while he resides at the Property under Dawn’s care shall be $5,500.00 per month, subject to paragraph 6 below. For further clarity, the Caregiving Compensation shall be allocated for the cost of Raymond’s caregiver(s) and/or as caregiving compensation, only, and shall not include food, utilities, medications, and/or any additional one-time expenses and/or other disbursements needed for Raymond’s care which shall paid from Raymond’s property at Dawn’s sole discretion.

6. THIS COURT ORDERS AND ADJUDGES that the Caregiving Compensation shall increase every calendar year in accordance with the previous year’s posted Canadian Consumer Price Index on the condition that the Caregiving Compensation is to be paid to Dawn only while Raymond resides with her at the Property. For clarity, should Raymond no longer reside at the Property, reside at a long-term care facility and/or pass away, the Caregiving Compensation shall cease, effective immediately.

7. THIS COURT ORDERS that Dawn shall be paid the Caregiving Compensation retroactive from June 11, 2021.

8. THIS COURT ORDERS that Dawn, on June 1 and December 1 every calendar year from the date of this Judgment to the date of Raymond’s death shall provide semi-annual, written reports to Lynne with respect to Raymond’s health, for as long as Raymond continues to reside at the Property. Failure by Dawn to deliver the said reports, has no bearing on any other provision in this Order. If Dawn fails to deliver the said reports by the deadlines prescribed in this paragraph, Lynne shall deliver a notice of this in writing sent via email, upon which Dawn shall have 30 days to provide this report.

9. THIS COURT ORDERS that Dawn, on June 1 and December 1 every calendar year from the date of this Judgment to the date of Raymond’s death, shall provide Lynne, with semi-annual, written reports, with particulars, bank statements, vouchers, receipts and all supporting documentation with respect to Dawn’s management of Raymond’s property as his power of attorney for property. Failure by Dawn to deliver the said reports, has no bearing on any other provision in this Order. If Dawn fails to deliver the said reports by the deadlines prescribed in this paragraph, Lynne shall deliver a notice of this in writing sent via email, upon which Dawn shall have 30 days to provide this report.

10. THIS COURT ORDERS that while Raymond continues to reside at the Property, Raymond’s children, Lynne, Susan Bierness and Rae Morgan, and Raymond’s friend, Wendy Morgan, shall be entitled to visit Raymond at the Property, one at a time, supervised by Dawn, so long as they do not interfere with Raymond’s care regimen, health and/or well-being in accordance with the following terms and conditions: Each visit must be co-ordinated in advance and approved by Dawn, in her sole discretion, in accordance with Raymond’s care regimen, health and well- being; Beirness, Rae Morgan and Wendy Morgan’s visits shall be limited to one (1) hour allocated each month at reasonably mutually agreed upon dates and times in accordance with Raymond’s care regimen as decided by Dawn in her sole discretion; The request for the monthly visitation appointment shall be provided to Dawn by the individual seeking the appointment one month in advance; Should Lynne, Susan Beirness, Rae Morgan and Wendy Morgan fail to visit Raymond in any given month, there shall be no carry forward of the 1 hour that was not utilized the month prior; Agreements as to the time for each visit shall be in writing via email, only; No visitor(s) attending the Property will be permitted to bring with any food, alcohol, drugs, marijuana, or recreational or prescription narcotics; and, If an individual does not attend at the time scheduled that individual forfeits their allowance for visitation for the month.

11. THIS COURT ORDERS that Lynne shall not be entitled to power of attorney compensation, for any period.

12. THIS COURT ORDERS that Dawn shall not be entitled to power of attorney compensation, for any period subject to: Dawn shall be entitled to compensation as a caregiver as outlined in this Order.

13. THIS COURT ORDERS that Dawn and her husband shall be entitled to reside at the Property, in Dawn’s discretion, free of rent and utilities, while Raymond continues to reside at the Property. This is in addition to the Caregiving Compensation.

14. THIS COURT ORDERS that Dawn shall be reimbursed from Raymond’s property for retroactive rent that she paid to Raymond as a part of the dispute with Lynne from the date that Raymond returned to the Property from the Chartwell Retirement Residence into Dawn’s care. For clarity this includes $1000 per month from June 11, 2021 until the date of this Order. Dawn shall also be reimbursed for any rent prepaid for period following this Order.

15. THIS COURT ORDERS that Lynne’s requirement to account with respect to her management of Raymond’s property pursuant to the Power of Attorney for Property dated April 25, 2018, or any other Power of Attorney executed by Raymond, shall be dispensed with. For clarity, any requirement for Lynne to account and/or pass her accounts with respect to her management of Raymond’s property for any period, shall be, and is hereby dispensed with.

16. THIS COURT ORDERS that Dawn’s requirement to account with respect to her management of Raymond’s property pursuant to the Power of Attorney for Property dated April 25, 2018, or any other Power of Attorney executed by Raymond, shall be dispensed with up to the date of this Judgment. For clarity, any requirement for Dawn to account and/or pass her accounts with respect to her management of Raymond’s property up to the date of this Judgment, shall be, and is hereby dispensed with.

17. THIS COURT ORDERS that Dawn shall not be held responsible or be held liable for any actions of Lynne and anyone that acted pursuant to Lynne’s authority under Lynne’s powers as attorney, whether used properly or improperly, including but not limited to any liabilities of Raymond for the period during which the books and records of Raymond were solely in the possession of Lynne. For greater clarity this period includes October 22, 2019 until June 29, 2021 when the books records of Raymond were in the sole possession of Lynne and Lynne acted unliterally with respect to the property of Raymond contrary to the terms of the joint power of attorney for property. Should any liability be found attributable to Dawn which was caused by the actions of Lynne or which should be properly attributable to Lynne, Lynne shall indemnify Dawn for any such liability. This includes but is not limited to tax liabilities (income, property, or otherwise), penalties, levies, missing funds, disgorgement, and/or misuse of funds/property.

18. THIS COURT ORDERS that Lynne’s costs for this Application shall be fixed on a full indemnity basis at the all-inclusive sum of $40,000 inclusive of HST and disbursements and shall be paid from the property of Raymond by Dawn forthwith, payable to Friedman Estate Litigation Professional Corporation, in trust.

19. THIS COURT ORDERS that Dawn’s costs for this Application shall be fixed on a full indemnity basis at the all-inclusive sum of $110,000 inclusive of HST and disbursements and shall be paid from the property of Raymond by Dawn forthwith, payable to Rogerson Law Group, in trust.

20. THIS COURT ORDERS that the Public Guardian and Trustee’s fee for reviewing this application, as approved by the Attorney General in the amount of $250.00 plus H.S.T. of $32.50 shall be paid forthwith to the Public Guardian and Trustee from the property of Raymond by the Dawn.

21. THIS COURT ORDERS that the Application herein shall be dismissed, with prejudice, on a without costs basis, unless otherwise contemplated by this Judgment.

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Dawn McKenzie in her capacity as Power of Attorney for Property and Power of Attorney for Personal Care for Raymond Morgan Applicant – and – Wendy Morgan Respondent REASONS FOR DECISION Justice S.E. Fraser

Released: March 2, 2023