IN THE MATTER OF THE PROPERTY OF ESLADIA MIGUEL

COURT FILE NO.: 03-064/20 and CV-21-00666258-00ES

DATE: 2023-08-16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Mary Ianuzziello, Applicant

AND: Manual Miguel and Joaquim Dos Santos Miguel, a.k.a. Jack Miguel, Respondents

AND: Manuel Miguel by his Litigation Guardian Fernanda Pereira and Esladia Miguel by her Litigation Guardian Fernanda Pereira, Applicants

AND: Mary Ianuzziello, personally and in her former capacity as Attorney for Property for Manuel Miguel, Respondent

BEFORE: C. Gilmore, J.

COUNSEL: Michael Buccioni, Counsel for Mary Ianuzziello Jonathan Kappy, Counsel for Litigation Guardian Fernanda Pereira Brendan Donovan, Counsel for Jack Miguel Liliana Ferreira, Section 3 counsel for Manuel Miguel

HEARD: July 21, 2023

ENDORSEMENT on hearing of the applications

INTRODUCTION

[1] There are two applications before the Court. In the Guardianship Application (Mary’s Application), the Applicant, Mary Ianuzziello (“Mary”) seeks an order for a capacity assessment in relation to her father Manuel Miguel (“Manuel”) and, if necessary, for her mother Esladia Miguel (“Esladia”). She also seeks an order appointing her or a third party as Guardian of Property for her father and, if necessary, her mother’s assets and an accounting from her brother Jack Miguel (“Jack”) with respect to his use of his parents’ money both in Canada and Portugal.

[2] Mary seeks to ensure that her parents’ assets are protected from depletion or misappropriation at the hands of her brother and to ensure her brother does not unduly influence her parents.

[3] In the second application, the Applicants Mr. and Mrs. Miguel (“the parents”) (the Parents’ Application) seek to compel Mary to pass her accounts and reclaim their property. Specifically, the parents seek an order that Mary be removed from title to the two Canadian properties they own, that she be removed from any joint account held with them and an order compelling her to pass her accounts from May 15, 1997 to date. Jack supports his parents’ Application and opposes Mary’s Application.

[4] The Applications were originally ordered to be heard together on February 24, 2023 but had to be adjourned to May 10, 2023 due to Court scheduling issues. Due to a conflict in counsels’ schedules the May 10, 2023 was no longer possible and on March 21, 2023 I ordered that the matter was to be heard on July 21, 2023 peremptory on all parties. The matter was further adjourned to July 25, 2023 to ensure that a full day was available for the hearing before me.

[5] For the reasons set out below, Mary’s application is dismissed with terms and the Parents’ Application is allowed in part.

BACKGROUND

[6] Mary and Jack are the only children of Esladia and Manuel Miguel.

[7] Mary is 62 years old. She is married to Mickey Ianuzziello (“Mickey”) and they have four adult children. Mary and Mickey are financially secure.

[8] Manuel and Esladia have been married for 63 years. Manuel retired in 2000. He suffers from psychosis, dementia, insomnia, stroke, cardiac and alcohol issues. Notwithstanding these illnesses, Manuel and Esladia have travelled to Portugal each year since 2000 and spend three or four months there. This tradition ended in 2020.

[9] Esladia is 81 years old and is represented by a Litigation Guardian in these proceedings. She has significant memory loss and cannot undertake complex tasks. A capacity assessment conducted in 2020 found that Esladia lacked capacity to manage her property or personal care decisions.

[10] Jack is 60 years old. He was convicted of various drug offences and imprisoned for ten years in the 1970s. Following his release from prison, he was deported from Canada back to Portugal. He is not a Canadian citizen. Jack is currently employed as his parents’ caregiver earning EUR 5,000 per month. Jack has deposed that he has received EUR 1,000 per month from his parents since 2012.

[11] In 1998, the parents executed powers of attorney for property naming one another as attorney with Mary as the alternate for both. Mary was given signing authority on her parents’ bank accounts over time as her parents became increasingly unable to do their own banking.

[12] Manuel and Esladia own a home 248 Conti Crescent in Woodbridge (“248 Conti” or “Conti”) which had been the family home since 1992. They also own a rental property at 435 Westmount Avenue in Toronto (“435 Westmount” or “Westmount”) and a property in Portugal where they currently reside. Both Conti and Westmount are currently rented.

[13] In November 2003, Mary and her parents attended at the office of Mr. John Quaglietta. On the parents’ instructions, Mr. Quaglietta added Mary as a joint tenant on both the Conti and Westmount properties. According to Mr. Quaglietta’s affidavit sworn February 25, 2022, this was done to safeguard the properties from Jack from whom the parents were estranged.

[14] Manuel and Esladia have six Canadian bank accounts containing a total of approximately $80,000. They also have pension and investment income. They have a bank account in Portugal in which they deposit EUR 1,500 per month. Mary has signing authority on the Canadian bank accounts in order to assist her parents.

[15] On January 23, 2020, Manuel suffered a fall and was hospitalized. Mary requested that Jack travel back from Portugal and visit for two weeks in order to assist with their parents’ plan to travel to Portugal that year. Jack arrived in Canada on January 31, 2020 and moved in with his parents at 248 Conti. Since that time, he has resided continuously with his parents in Canada and in Portugal.

[16] During his visit to Canada in early 2020, Jack investigated his parents’ financial affairs and living conditions. His resulting discoveries have led to both of the within Applications.

[17] Jack currently resides with his parents in Portugal and has assumed the job of their full-time caregiver. He does not pay rent to his parents.

PRELIMINARY ISSUES RAISED AT THE HEARING

1. Mary’s Supplementary Affidavit sworn July 12, 2023

[18] Mary swore an affidavit on July 12, 2023 in which she addressed what she deposed was her brother’s untruthful statements in relation to his conviction and imprisonment for assault in Portugal.

[19] Jack was asked during his cross-examination on February 2, 2023 if he had ever stabbed anyone and gone to prison in Portugal as a result. Jack denied the stabbing and that he had gone to prison for it.

[20] Mary’s counsel wrote to Jack’s counsel on July 4, 2023 and presented letters written by Jack to Mary in 1997 in which he wrote that he was in prison and that he had “lost it” and stabbed the victim six to seven times. Jack’s counsel responded but did not make any admissions.

[21] Jack’s counsel submitted that if this was evidence Mary wanted to adduce, she should have included it in her original affidavit. The affidavit was filed after Jack’s cross-examination and can only be filed with leave of the Court. Further, the matter is so dated as to be irrelevant. In any event, Jack’s counsel submitted there is no authority for the proposition that someone who has committed a criminal offence over 30 years ago and been pardoned cannot be appointed an attorney for property.

[22] Mary’s counsel submits that the affidavit is highly relevant and probative as it goes to Jack’s credibility and his ability to fulfil the duties of an attorney.

Ruling on Mary’s Supplementary Affidavit

[23] Rule 39.02(1) and (2) does not permit the delivery of an affidavit after cross-examination without leave of the Court.

[24] I gave a brief oral ruling after submissions on this issue in which I permitted the admission of the affidavit but that I would determine what weight to be given to it after I had considered all of the evidence.

[25] The affidavit should be given some limited weight. There is no doubt that Jack has a criminal past. I do not agree that his past should be completely ignored in terms of his ability to carry out the important fiduciary duties of an attorney for property for his parents.

2. Jack’s Affidavit Sworn December 1, 2021

[26] Jack swore an affidavit on December 1, 2021 in support of a motion brought by the parents against Mary for an accounting. Attached to that affidavit is an informal accounting of the parents’ Canadian assets from February 5, 2020 to September 1, 2020 and an informal accounting of the parents’ Portuguese assets from January 1, 2016 to December 31, 2020.

[27] The motion never proceeded and was converted into a judicial mediation which was never completed.

[28] Jack sought to rely on this affidavit to counter Mary’s allegation that he had never produced an accounting as requested. On cross-examination on February 2, 2023, Mary deposed that she had never seen the affidavit or the accounting.

[29] Mary’s counsel submitted that the right to cross-examine on the affidavit was reserved because Jack’s counsel did not advise that he intended to rely on it until shortly before this hearing. As such, Jack’s accounting remains untested.

Ruling on Jack’s December 1, 2021 Affidavit

[30] Jack has provided an informal accounting without vouchers and without being cross-examined on his accounting. It would be unfair to admit the affidavit and accounting in these circumstances.

[31] I do, however, accept that Jack is not opposed to submitting an accounting and that he has never been asked for vouchers. The fact that he has provided an accounting as an exhibit to his December 1, 2021 affidavit goes to his willingness to provide such an accounting, but the reliability of that accounting remains in issue.

A. THE GUARDIANSHIP APPLICATION (MARY’S APPLICATION)

THE POSITIONS OF THE PARTIES

The Applicant

[32] Mary and her family had a very close relationship with her parents. However, they have not seen or spoken to her parents for over three years. Her parents have not seen their new grandchild. According to Mary, this rupture was precipitated by Jack’s arrival in Canada on January 31, 2020.

[33] Mary submits that since his arrival in Canada, Jack has been influencing and manipulating their parents in order to isolate them from Mary’s family and take control of their assets.

[34] In February 2020, Jack took his parents to the bank and withdrew $35,000. In response and in order to protect her parents’ assets from further misappropriation, Mary transferred some of her parents’ funds to an account in her own name.

[35] Jack discovered shortly after February 2020 that Mary has been on title with her parents of both 435 Westmount and 248 Conti since 2004. Mary submits that her name was placed on title by her parents because of her parents’ concern that Jack would manipulate them and try to take their money. The lawyer who acted on the title transactions, Mr. Quaglietta, confirmed Mary’s position in his affidavit sworn February 25, 2022. Mr. Quaglietta deposed that he was advised by Mr. and Mrs. Miguel that they were estranged from their son and fearful of him due to his criminal activities and temper.

[36] Mary has never claimed a beneficial interest in either Conti or Westmount. Her name was placed on title as an additional level of security for her parents. Mary denies any allegations that she has taken her parents’ money. During the many years when Jack was absent from their lives, Mary took care of her parents. She would purchase items for them on her credit card (as they did not have credit cards) and then reimburse herself from their accounts.

[37] Manuel and Esladia executed powers of attorney in 1998 naming one another with Mary acting as the alternate. Shortly after discovering that Mary was on title to both the Westmount and Conti properties, Jack arranged for Manuel to execute a new power of attorney (“POA”) naming him as Manuel’s attorney with no alternate. Mary believes that Jack may have had her father sign a new will as well. Mary submits that Jack has provided written instructions to their parents not to answer the telephone or door when he wasn’t there. He then dismantled the doorbell system and the security cameras which Mary had installed. Jack admitted in his cross-examination that he told his parents not to answer the door nor the phone when he was not there.

[38] In the fall of 2021, Jack went to Portugal with his parents and did not advise Mary. He returned with them in early 2022. In August 2022, Jack took his parents to Portugal and advised Mary that they will be living there permanently. Jack has rented 248 Conti to tenants and refuses to provide details to Mary.

[39] Mary submits that Jack is a chronic liar and that his testimony should not be believed. For example, during his cross-examination on February 2, 2023 he denied being imprisoned in Portugal for a stabbing offence. Mary subsequently located correspondence from Jack dated November 5, 1997 in which Jack writes “I know it is a great shock for you to hear that I’m locked up again.” He admits in the letter that he “lost it” and stabbed the victim six or seven times. A further letter produced by Mary was sent while he was serving his sentence in Portugal for the stabbing.

[40] Manuel has sworn an affidavit in this proceeding. However, he does not depose that he is opposed to a capacity assessment, that he has moved to Portugal permanently or that he intends to sell Westmount and Conti. During his cross-examination he stated that he never intends to return to Canada and does not wish to see grandchildren. His answers appeared coached and rehearsed and Manuel became agitated during the examination. His counsel adjourned the examination and then refused to answer any further written questions.

[41] Jack asserts that his parents have agreed to pay him EUR 5,000 per month for his caregiving services including a $130,000 retroactive payment back to early 2020. He resides with his parents for free and wants both Westmount and Conti sold so he can use the proceeds of sale to pay for his parents’ needs. He opposes Mary caring for his parents but does not oppose to a third-party caregiver.

[42] Mary is concerned that Jack wants to sell Conti and Westmount so that he can control all of their parents’ assets for his own benefit. Mary does not trust Jack and is fearful that he will dissipate her parents’ assets and leave them destitute.

[43] Mary’s main focus in her Application is to obtain a capacity assessment for her father. She understands that he would have to come back to Canada for this and that it would need to be done by a Portuguese speaking assessor or with an interpreter. Mary’s position is that her father has not had capacity for a significant amount of time and, as such, he is being unduly influenced by Jack. Mary’s counsel noted that the one affidavit filed by her father does not address the issue of a capacity assessment.

[44] Mary pointed out that there has been a “seismic shift” in her parents’ behaviour since Jack arrived in Canada in January 2020. Prior to that, her parents had no concerns about her caregiving, the caregivers she hired, or how Mary managed their income and assets. Suddenly, after Jack’s arrival, Mary is accused of tricking her parents, stealing their money and providing substandard care to them. She denies the allegations and submits this is typical behaviour on the part of her brother who is a criminal and a violent person who cannot be trusted.

[45] Mary also adverted to the fact that from the date of her father’s retirement in 2000, her parents were happy to spend three to four months a year in Portugal. Now, under Jack’s influence, they have decided to remain in Portugal permanently. Their decision to remain away from Mary and her family after their close relationship for so many years is both hurtful and completely out of character. In cross-examination, her father deposed that his decision to move to Portugal permanently coincided with Jack starting to live with him and his wife. Mary submits that the decision by her parents to reside in Portugal permanently has been influenced by Jack who cannot reside in Canada due to his prior deportation.

[46] Within only weeks of Jack’s arrival in Canada in January 2020, he arranged for his father to change his previous POA which had been in place for 22 years.

[47] Now, according to Jack, his parents want to sell Conti and Westmount. Jack’s evidence was that he wants the homes sold and the money put into his parents’ accounts so that his salary can be paid, and “we” can live. Conti has been the Miguel family home for 31 years. Mary submits that this decision has been influenced by Jack who wants to ensure his parents’ Canadian assets are liquidated and under his control. The two properties are worth several million dollars as neither is mortgaged. Mary notes there is nothing in her father’s affidavit indicating that he wants to sell either property. Mary suggests that Jack is driving all of the decisions in relation to liquidation and control of his parents’ assets.

[48] Mary is also concerned about Jack’s caregiving. Prior to January 2020 her parents had been managing independently with some help from Mary and outside caregivers. Suddenly in January they required full-time care at a cost of EUR 5,000 per month. Soon thereafter, Jack disengaged the cameras and doorbell system Mary had installed and Jack specifically instructs his parents not to answer the door or the phone.

[49] Mary has not seen her parents in three years despite many attempts to do so. Jack has deliberately isolated Mary’s family from her parents to the point where her parents now say she has abandoned them, and they do not want to see her. Mary is devastated at the extent of manipulation and influence Jack has over her parents who have not even seen their newest grandchild.

[50] Mary has filed medical evidence which demonstrates that her father suffers from cognitive disorders including dementia and psychosis. Mary has not been able to obtain more recent evidence but is aware that her father’s condition will not improve, only deteriorate. She submits that Jack could have provided more recent medical evidence but has chosen not to do so. Questions from Mary concerning her father’s medications and current health condition have remain unanswered.

[51] The assessment by Ana Carrabau is challenged by Mary. First, she submits that there is nothing in the report that describes Ms. Carrabau’s ability to conduct the assessment in Portuguese. Second, her notes are not attached and as such it is not possible to realistically confirm the veracity of Mr. Miguel’s responses. Third, all of the background information given to Ms. Carrabau was from Jack. Mary was never contacted with respect to her extensive knowledge of her parents’ history. It is telling that Jack told Ms. Carrabau that he would be living in Canada with his parents. This is simply not possible due to his criminal history and prior deportation.

[52] Mary also challenges the lack of quantification of her parents’ assets in the report. Manuel was aware he owned two properties in Ontario and one in Portugal but was not aware of what assets he held in his bank accounts or how much pension income he received.

[53] Mary is aware that she has not filed either a management or guardianship plan. This can be easily done once an assessment is completed and a determination made regarding who should be guardian. As for the alleged conflict of interest, Mary responds that she has none. She is not asking for or currently receiving any of her parents’ money for her own benefit. Jack is the one in a position of conflict being in receipt of a monthly stipend from his parents since 2012 and now in receipt of a full-time income from them.

[54] For all of the above reasons, Mary submits that Ms. Carrabau’s report should be rejected and a new assessment ordered. If her father is incapable, he will need a guardian and it should not be Jack. Mary would agree to a third-party guardian if necessary.

[55] Without an assessment and a guardianship in place, Mary is concerned that Jack will dissipate his parents’ assets, starting with the $135,000 payment he is requesting by way of a retroactive caregiving fee. Mary is concerned that, as her parents age and become more infirm, they are more vulnerable to Jack’s influence and manipulation.

Section 3 Counsel for Manuel Miguel

[56] Under section 3 of the Substitute Decisions Act, S.O. 1992, c. 30 (“SDA”), a person whose capacity is in question may have legal representation arranged by the Public Guardian Trustee (“PGT”) where they do not have legal representation.

[57] Section 3 counsel submits that she speaks Portuguese and has been able to communicate with Manuel. He has clearly told her he wants to stay in Portugal with his wife and be cared for by Jack. He is very frustrated with his daughter Mary and does not wish to communicate with her at this time.

[58] Further, Manuel wants Jack to be compensated as their full-time caregiver because he gave up another job to enable him to care for them. He does not want a third-party making decisions for him. He does not want Mary to care for him or manage his money because she did not take care of her parents properly and he no longer trusts her with his money. He does not want to return to Canada and undergo a further capacity assessment.

[59] Manuel wants his properties in Canada sold. While Section 3 counsel concedes this was not in his affidavit, this information was communicated to her directly by Manuel. He wants the sale proceeds to be available to him and his wife. There is no reason for Mary to remain on title to his properties.

[60] Manuel trusted Mary to manage his assets because his English was not proficient, and Mary was more financially sophisticated because she worked in a bank. Mary has admitted that she began managing her parents’ money and assets from as far back as 1997.

[61] When Manuel began asking questions about his property in February 2020, Mary became secretive and told her father to stop asking questions. When Mary gave him documents to sign in the past, he signed them because he trusted her.

[62] Mary refused to transfer assets back to her parents when requested, including funds belonging to her parents which are in Bank of Montreal and Scotiabank accounts solely in her name. Mary has refused to produce copies of accounts in her name in which her parents’ funds are held. Manuel was upset to learn that Mary had been added as a joint owner on his bank accounts. He had not authorized this change.

[63] Section 3 counsel identified several transactions which Manuel claims he did not authorize including transfers to other accounts and unexplained transactions. While Mary claims she transferred money out of her parents’ accounts for their benefit she has not provided a proper accounting.

[64] Given what is described by the Section 3 counsel as a betrayal of his trust, Manuel changed his POA. Prior to executing the POA, he was visited by assessor, Ana M. Carrabau, who opined that Manuel had capacity to sign a POA. He then went to Mr. Marcos, a Portuguese speaking lawyer, to have new POAs prepared.

Jack Miguel

[65] Jack submits that his parents wish to reside in Portugal permanently. As such, they seek to liquidate their Canadian assets and remove any control which Mary exercised over those assets.

[66] Jack accuses Mary of mishandling their parents’ money and does not believe her claims that she put assets out of their reach to protect them from Jack. He submits that Mary has admittedly blocked her parents’ access to their own income and savings since 2020 causing them financial hardship.

[67] Jack submits that he came to Canada on January 31, 2020 at Mary’s request after their father had had a fall. He was shocked at the state of their home and their personal well-being. He found their home in disarray and that they were without food or money. When Mary finally came by on February 5, 2020 Jack told her that their parents needed a caregiver to assist them with daily living tasks including cooking and cleaning.

[68] Mary agreed to pay Jack EUR 5,000 per month to care for their parents. She would use her father’s pension money and top up the rest from her own funds. Jack found this puzzling since he assumed his parents had sufficient savings to fund the caregiving fees. When Jack suggested selling the Conti property and Mary resisted, he became suspicious. Jack then investigated the title holding of the Conti and Westmont properties, and found that Mary was a joint owner of both properties.

[69] Jack informed his parents about Mary being on title and deposed that they were visibly shocked and upset. Jack believes that due to his parents’ lack of sophistication and English proficiency that Mary tricked them into transferring title into joint names.

[70] Jack was also concerned that his parents did not seem to have any money or know where their money was. In February 2020 he took his parents to their various banks and discovered that Mary’s name was on all the accounts. He requested statements from the accounts and discovered that Mary had been transferring funds from her parents’ accounts to her personal account every month. Further, there was a transfer of $50,000 in November 2019 from his parents’ Bank of Montreal account to Mary’s personal account which remains unexplained. Jack further alleges that Mary used internet banking to move money between her parents’ accounts to avoid the need for their signatures.

[71] According to Jack, his parents were shocked to learn what had happened to their money. They knew that Mary had authority on their accounts but assumed she was using it to pay bills as they originally understood. Based on his parents’ instructions, Jack withdrew $35,000 from their Scotiabank account and put it into a new savings account in their joint names. Jack was also able to redirect his father’s pension payments into that account. His mother’s pension payments continue to be deposited into an account held jointly with Mary.

[72] Further, Jack submits that his parents were upset to learn that their RRSP had been cashed and mostly depleted and that the rental income from Westmount was being paid directly to Mary. Jack had his lawyer advise the tenants to commence paying rent to his father.

[73] With the assistance of his counsel, Jack arranged for his father to undergo a capacity assessment with a Portuguese-speaking assessor, Ms. Ana Carrabau. The report, dated March 27, 2020, opines that Miguel had capacity to make a new POA for property and personal care and a new will. Jack denies Mary’s allegations that the assessor was biased.

[74] After the assessment was completed, Jack arranged to take his father to a Portuguese-speaking lawyer to draw new POAs at his father’s request as his father believed that Mary was no longer acting in his best interests. Jack opposes his sister’s request that his father undergo a further capacity assessment.

[75] Jack denies that Mary was his parents’ primary caregiver for the five years prior to 2020. He concedes that she and her family helped them with groceries, bill paying and medical appointments. They otherwise lived independently. They always lived independently when they went to Portugal each year prior to 2020.

[76] Jack submits that his parents have made it clear to him that they wish to sell the Conti property, move to Portugal and have him take care of them. Jack is content to carry out their wishes.

[77] It is Jack’s position that Mary’s Application is fundamentally flawed. First, she has failed to meet the test required for an order forcing her father to undergo a further capacity assessment.

[78] The report of Ms. Carrabau was not a cursory one. It was detailed and contained reference to and a review of medical reports for Miguel. These were the same medical reports which Mary attached as exhibits to her affidavit. The purpose of the assessment was explained to Miguel and he was asked why he wanted to change his POA. Ms. Carrabau asked Miguel if he could identify other options regarding the POA and, when presented with the option of appointing Mary and Jack jointly, he said he would consider it.

[79] Jack’s counsel submits that Mary should have requested production of further medical records, submitted a critique report or a retrospective capacity assessment and she should have done all of this in 2020. Instead, she has done nothing but insist on a further capacity assessment.

[80] It is disingenuous for Mary to insist that Jack has caused a “seismic shift” in their parents’ behaviour. The other distinct possibility is that when their parents found out about Mary’s mismanagement of their money and property, they made the decision to re-arrange their affairs and their lifestyle.

[81] Mary is very critical of Jack and his criminal past. However, it must be kept in mind that it was Mary who invited Jack to Canada to assist her with her father when he had a fall. She also wanted Jack’s assistance in getting them to Portugal for their annual trip. Jack submits that he and his sister had a much better relationship than Mary suggests. Only when it became clear that Mary was no longer fully managing her parents’ assets did the relationship become fractured.

[82] Mary’s attempts to remove Jack as POA are all based on conjecture as to what Jack might do if he were to take over as his parents’ caregiver. She has not been able to demonstrate any misconduct on Jack’s part. On the contrary, Miguel was very clear that he wants Jack to take care of him and his wife and not Mary or a third party. Both Esladia’s sister and a cousin of the parents, Mr. Nunes, swore affidavits in support of Jack’s caregiving. They were unshaken on cross-examination.

[83] Second, Mary has not met the test to be appointed as her parents’ guardian as she must have a capacity assessment before she can do so. Requesting one now is highly prejudicial to their father. While Miguel’s capacity may have been in issue in 2020 and now, there is no evidence of incapacity and Miguel has made it clear he does not want to undergo another assessment. The evidence in support of Mary’s request is highly speculative. Ordering her father to undergo a further invasive assessment is neither warranted nor tenable.

[84] Jack points out that the only evidence that her father is incapable comes from Mary. The third-party witnesses, Jack, and the assessor all confirm the opposite.

[85] Jack also raises the issue of timing. Even if a new assessment reveals that Miguel is no longer capable, that does not affect the validity of the 2020 POA. Mary lacks the clear and cogent evidence required in the case law to displace the presumption of her father’s capacity in 2020.

[86] In terms of technical issues, Jack submits that Mary has not submitted either a guardianship or management plan and only served the Public Guardian Trustee recently. The SDA mandates a guardianship and management plan where guardianship is sought.

[87] Finally, Mary is in a conflict of interest as her parents are seeking an order for her to return full ownership of Conti and Westmount, their joints accounts and any other funds she holds on their behalf. Since she is being asked to pass her accounts, she is in a clear conflict of interest.

[88] Jack requests that Mary’s Application be dismissed as it is flawed for all of the reasons set out above.

B. THE PARENTS’ APPLICATION

The Positions of the Parties

Jack

[89] Mary has ignored two endorsements directing her to provide an accounting of her parents’ assets: the endorsement of Gilmore, J. dated December 8, 2020 and the endorsement of Kimmel, J. dated March 3, 2022. Mary was shown both endorsements during her cross-examination but claimed she did not know about them. Further, Mary opposes the sale of Conti and Westmount and refuses to transfer the money she says she is holding for her parents back to them unless a third party is managing their financial affairs. She believes that Jack would somehow obtain this money and spend it.

[90] Mary insists that there is no evidence of any wrongdoing on her part, but it is difficult to conclude this without a proper accounting. For example, Mary collected her parents’ pension and rental income and would not give it to them. She must provide an accounting for this.

[91] While Mary did reference the balance of six of her parents’ accounts in her factum, this is somewhat misleading because she transferred a large portion of her parents’ money into Bank of Montreal and Scotiabank accounts in her own name in order to allegedly protect the funds from Jack. She has not permitted her parents access to those funds, even to pay tax on the rental income they earn.

[92] Jack submits that there is evidence that Mary has been transferring funds from her parents’ joint accounts to her own account since 2019. There has been self-dealing and comingling on Mary’s part and she is obligated to provide a formal accounting.

[93] Jack has produced an accounting of all Canadian assets under his control from February 25, 2020 to September 1, 2020. He has also produced an accounting of all of his parents’ Portuguese assets for the period of January 1, 2016 to December 31, 2020. It is improper for Mary to say that she has not seen Jack’s accounting for the Canadian or Portuguese assets. He did not provide all vouchers because he was not asked to.

The Litigation Guardian for Manuel and Esladia Miguel

[94] The litigation guardian (“LG”) submits that there are only two narrow issues in the parents’ application: who are the owners of assets held jointly by Mary and her parents, and from what date should she account for the management of their assets.

[95] The parents have commenced this Application because they want Mary to return their assets and account for the time during which she managed them. Now that she has conceded that she has been holding those assets solely for her parents’ benefit, this should not be an issue. Unfortunately, Mary did not make this concession until her January 2023 affidavit.

[96] Mary was first ordered to provide an accounting on December 8, 2020. She failed to provide the accounting. In February and in March 2022 Mary indicated a willingness to provide an informal accounting which she has still not done.

[97] The LG requests an order that Mary account from 1998 to present. The evidence shows that Mary was first added to her parents’ bank account in 1997 and the POA was signed in 1998. In 2004 she was added on title to Conti and Westmount. By 2015 she was joint on four of her parents’ bank accounts.

[98] Mary has conceded that she managed her parents’ assets as far back as the mid 1990s. Her father wants her to account, and she should be required to do so given her admissions and her fiduciary obligations as POA.

[99] Manuel does not recall consenting to Mary being added as a joint owner of the Conti or Westmount properties and does not wish her to have the right of survivorship. His intention and that of his wife has always been to leave their estate equally to their children.

Mary

[100] Mary’s counsel concedes that there is not much in dispute in this application other than the date from which Mary should account. However, given the affidavit of Mr. Quaglietta and the fact that Manuel was not even aware he had brought an Application against his daughter, the issues in both Applications should be dealt with globally.

[101] Mary has provided evidence in her February 2022 affidavit and made her best efforts to provide statements from as far back as she can.

[102] Mary has knowledge of six Canadian bank accounts in her parents’ name. She has provided the balances for those accounts as of July 2020. She also notes that Jack took $35,000 from Esladia’s account and put those funds into a new account. This happened within a very short time of Jack’s arrival in early 2020. She is not a thief nor a criminal. Prior to Jack’s arrival in 2020, she regularly transferred money from her parents’ accounts to her own to reimburse herself for expenses she paid on behalf of her parents. After she found out that Jack had transferred a significant sum out of her parents’ accounts, she did the same in order to ensure the accounts were not entirely dissipated by Jack. She does not trust Jack. He has no savings or assets that she is aware of. She is concerned that Jack will use the parents’ accounts and assets as his own.

[103] Mary’s position in terms of a formal accounting is that she never acted as an attorney for her parents. She has only helped them in her capacity as their daughter. Prior to 2018, her parents handled their own financial transactions. From 2018 onwards, she became more involved. She denies that she was involved as far back as the 1990s. In any event, it would be entirely impractical to obtain bank or any other records dating that far back.

[104] Mary concedes that she may have been overly cautious in attempting to protect her parents’ assets from Jack, but she only had their best interests in mind. If she is required to provide a formal accounting, it should not go back further than 2018 and should be on parity with Jack’s required accounting.

ANALYSIS

The Guardianship Application (Mary’s Application)

A. The Capacity Assessment

[105] Mary seeks an order for a further capacity assessment for her father, and if necessary, for her mother as well. There was a previous capacity assessment done in relation to Esladia by Ms. Carrabau. Esladia was found to be incapable.

[106] Mary only requested an order for a capacity assessment for her father in her Notice of Application. As such, the Court will not consider a request for a capacity assessment for Esladia. Further, no submissions were made in relation to Esladia.

[107] Manuel opposes undergoing a further capacity assessment and travelling to Ontario for such an assessment. The test for such an assessment where it is opposed, and where there are pre-existing assessments, is well set out in Abrams v. Abrams, 2008 ONSC 67884 (Ont. S.C.) at para 53 as follows:

(a) the purpose of the SDA, as discussed above;

(b) the terms of section 79, namely:

(i) the person’s capacity must be in issue; and

(ii) there are reasonable grounds to believe that the person is incapable;

(c) the nature and circumstances of the proceedings in which the issue is raised;

(d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;

(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;

(f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;

(g) whether the assessment will be necessary in order to decide the issue before the court;

(h) whether any harm will be done if an assessment does not take place;

(i) whether there is any urgency to the assessment; and

(j) the wishes of the person sought to be examined, taking into account his or her capacity.

[108] Strathy J. (as he then was) described the assessment process as an intrusive one and the decision to order one must take into account both the public interest and that of the person to be assessed.

[109] Turning to the Abrams factors and applying them to the evidence in this case, I find that Manuel’s capacity is in issue. The medical reports are clear that he suffers from a number of different conditions including dementia. However, there is no current evidence of incapacity.

[110] With respect to the nature and quality of the evidence available, Manuel has sworn an affidavit in this proceeding and was cross-examined on it. While he does not specifically reject undergoing a capacity assessment, he is clear with respect to his choice of Jack as his caregiver and his rejection of Mary being involved in his financial affairs. He has been represented by section 3 counsel throughout.

[111] The only other evidence of incapacity are the medical records reviewed by both Mary and Ms. Carrabau. While there is certainly evidence of Manuel’s cognitive and behavioural issues in those records, which Ms. Carrabau was aware of, she nonetheless found Manuel to have capacity.

[112] In terms of the nature and circumstances of the proceeding, I agree with Mr. Donovan that Mary is too late with her request. A request for a further assessment, a responding report, a request for further medical records or a copy of Mr. Benjamin Marcos’ file (the lawyer who drafted the POA) was not made in 2020. The best evidence available now is Ms. Carrabau’s report which finds that Manuel was capable to execute the new POAs in 2020. In short, even if an assessment was ordered which found Manuel incapable (which is possible given that it is unlikely his conditions have improved), it would not assist in terms of his ability to execute the 2020 POA, which remains in force.

[113] In terms of the Carrabau assessment, the Court should consider: the qualifications of the assessor; the comprehensiveness of the report; the conclusions reached; whether the report is flawed due to bias or a failure to consider relevant evidence; and whether the assessor applied the proper criteria.

[114] Mary insists that Ms. Carrabau did not have the proper qualifications to conduct the assessment in Portuguese and was biased. Specifically, Mary submitted that Ms. Carrabau was only given information from Jack and never contacted Mary, makes very general statements, does not attempt to have Manuel quantify his assets and did not attempt to obtain updated medical evidence.

[115] I do not agree that Ms. Carrabau’s report should not be relied upon by this Court. I found it to be thorough and unbiased for the reasons set out below.

[116] Ms. Carrabau provided a letter of opinion dated March 27, 2020. She is an occupational therapist and a designated capacity assessor under the SDA.

[117] Her report sets out that she reviewed a number of different medical documents related to Manuel. Mary had access to those same documents. Mary’s complaint that Ms. Carrabau did not review her father’s medical history is misplaced. Ms. Carrabau was well aware of the diagnoses that Manual suffered from cognitive impairment, paranoia, alcohol abuse, religious preoccupation, previous hospitalizations and depression. Manuel also demonstrated self-awareness of his medical issues, telling Ms. Carrabau that he needed to take his medications to ensure he did not lose control of his behaviour.

[118] Ms. Carrabau met with Manuel on February 28, 2020 and again on March 12, 2020. She noted that both interviews were conducted in Portuguese and without Jack being present. Ms. Carrabau explained the purpose of the assessment and found Manuel to be cooperative, pleasant, and that he had no difficulty expressing his wish to make changes to his POA to permit Jack to manage his property. He was aware that Mary had been his POA for property and personal care for many years and that she had been assisting him and his wife with their financial affairs. He was also aware that Mary had become increasingly involved with his financial affairs after he and wife were no longer able to drive. Ms. Carrabau specifically references Manuel’s understanding of a POA and its purpose. They also discussed other options such as jointly appointing Mary and Jack as POA. Manuel said he would think about that option but remained unsure.

[119] With respect to the transfer of title of Conti and Westmount into joint ownership with Mary in 2004, Miguel had no recollection of this and was concerned that this information had been withheld from him. He expressed some anger towards Mary about this.

[120] Ms. Carrabau questioned Manuel about his understanding of a POA for Personal Care. He clearly expressed that he needs help with his medications and that while he wanted to return to Portugal, he did not feel he could do so without his son’s assistance. He expressed that both of his children would be suitable attorneys for personal care as they both were concerned for his well-being.

[121] Turning to testamentary capacity, Manuel was able to explain the difference between a Will and a POA, who the beneficiaries of his will were and his desire to leave his estate to his children equally. He confirmed that doing otherwise would create conflict between his children which he wanted to avoid.

[122] Based on Ms. Carrabau’s report I am satisfied that Manuel was able to:

a. articulate the purpose of a POA for property and personal care, and the difference between the two.

b. articulate an understanding of the existence and contents of his current POAs.

c. consider options as to who would be best suited as POA between his children and why he would not continue with Mary as his POA for property.

d. articulate in a general sense what property he owns.

e. demonstrate self-awareness with respect to the assistance he needs to take his medications and make personal care decisions.

f. demonstrate an understanding of his own health condition and why it is important for him to take his prescribed medications.

g. articulate what a Will was and why he did not want to change his current Will.

[123] While Mary claims that Ms. Carrabau was biased in her report, I see no basis for this. The only criticism that could be made was that Ms. Carrabau did not consult with Mary. However, even if she had, that would not have affected Manuel’s understanding of what a POA and a Will were, and what his assets and options were.

[124] Manuel told Ms. Carrabau in March 2020 that he would consider appointing Jack and Mary as his POA for property and personal care jointly. He did not sign his new POAs for a month after Ms. Carrabau’s last interview. He had time to consider his options and chose not to involve Mary.

[125] Mary does not specifically attack Ms. Carrabau’s qualifications other than the fact that there is no evidence to support that Ms. Carrabau was able to adequately communicate with Manuel in Portuguese. It is true that Ms. Carrabau does not address this in her report. However, I note that Manuel’s affidavit had to be translated into Portuguese for him to be able to swear it, an interpreter was required for his cross-examination and Mr. Marcos specifically mentions in the POAs that they were explained to the grantor in Portuguese who appeared to “perfectly” understand their contents.

[126] I infer from all of the above, that Ms. Carrabau could not have conducted two interviews with Manuel unless they were in Portuguese. As she was clear in her report that only she and Manuel were present at both interviews, I further infer that no interpreter was present and that Ms. Carrabau had the necessary facility to communicate with Manuel.

[127] In terms of any harm which may result in not ordering an assessment, I cannot find any. Manuel has clearly stated his preference to remain in Portugal and have Jack care for him and his wife. He is content with Jack managing his personal and financial affairs. There is no allegation that Manuel and his wife are not receiving good care. Any concerns with respect to Mary’s suspicions related to Jack’s management of her parents’ financial affairs will be dealt with below.

[128] In Groh v. Steele, 2017 ONSC 3625, 29 E.T.R. (4th) 121, the Court dismissed an application by the son of allegedly incapable person. The son sought a capacity assessment for his mother where a capacity assessment had already been done by a qualified capacity assessor who concluded that the mother had capacity to instruct counsel and manage her financial affairs. The Court dismissed the application notwithstanding the mother’s difficulty in recalling certain financial transactions. The fact that she got some details wrong was insufficient to question the mother’s capacity: para. 40. The Court cited Abrams with respect to a capacity assessment being a “substantial intervention into the privacy and security of the individual.”

[129] In summary, section 79 of the SDA permits the Court to order a capacity assessment where a person’s capacity is in issue. There is no evidence in this case that Manuel’s capacity is currently in issue. There are inferences and assumptions based on his medical history but no evidence upon which this Court can reasonably rely.

[130] Given the invasive nature of a further assessment, Manuel’s counsel’s submissions with respect to his opposition to undergoing a further assessment and travelling back to Canada for that purpose, and the lack of evidence of incapacity, I decline to order a further assessment.

B. Mary as Guardian for her Father

[131] Mary’s Application requests that she be appointed as guardian of property and personal care for her father. In the alternative, she seeks the appointment of the PGT. I note that Mary does not seek guardianship in relation to her mother, nor does she request a third party as an alternative in either case. The PGT does not consent to being appointed as guardian in this case.

[132] In order to be appointed guardian of property and personal care for her father, Mary must meet the following criteria:

a. she must displace the presumptions of capacity to manage one’s own property and personal care which apply to her father;

b. she must meet the requirements of an acceptable guardian under subsections 24(5) and 57(3) of the SDA;

c. she must file a management and guardianship plan;

d. she must not place herself in a conflict of interest; and

e. her appointment must be the least restrictive option.

[133] I find that Mary has not met the required criteria for the reasons set out below.

[134] As per DL (Re), 2017 ONCCB 143060 on page 7:

There is a presumption of capacity to manage property and that presumption must be rebutted on the balance of probabilities. In order for the [Consent and Capacity] Board to uphold the finding of incapacity, it must hear clear, cogent and compelling evidence.

[135] There is no clear or cogent evidence to displace the presumption that Manuel has capacity to manage his property or make personal care decisions. Mary could have brought a motion to require updated medical and hospital records but chose not to do so. All that is before the Court is the medical records reviewed by Ms. Carrabau and Mary, and Ms. Carrabau’s report. That evidence is insufficient to displace the presumption of capacity in this Court’s view.

[136] While it is true that Manuel is now represented by section 3 counsel, such representation indicates that the person’s capacity is “in issue”, not that that they are incapable. Indeed, Ms. Ferrara did not indicate that she had any difficulty obtaining instructions from Manuel. Her submissions to the Court were clear and concise.

[137] Given the limited evidence available, I am unable to find that Mary has displaced the presumption of capacity as it relates to her father.

[138] When considering the appointment of a guardian under section 24(5) the SDA, the Court shall consider the following:

(a) whether the proposed guardian is an attorney under a continuing POA;

(b) the incapable person's current wishes if they can be ascertained; and

(c) the closeness of the applicant's relationship to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.

[139] It is clear that Mary has been replaced as attorney for property and personal care by Jack. She was not appointed as the alternate.

[140] It is also clear that, despite being presented with options by Ms. Carrabau, Manuel has chosen not to involve Mary in his personal and financial affairs. In his cross-examination, Manuel states that he is not happy with Mary because she has not provided him with an accounting. He has gone so far as to commence an application to compel her to pass her accounts.

[141] Mary’s parents have decided to reside in Portugal permanently. Mary resides in Ontario. While Mary and her parents were close at one time, they are now detached both physically and emotionally.

[142] Given all of the above, not only does Mary not meet the criteria to be appointed as guardian under the SDA, appointing her would not make practical sense. Mary lives in a different country from her parents. Her evidence was that she would not let her parents see Jack except under supervised conditions. As such, her appointment would be entirely inconsistent with her father’s wishes and must be rejected.

[143] According to sections 17(3) and 70(2)(b) of the SDA, an application to appoint a guardian of the person requires a guardianship plan and an application to appoint a guardian of property requires a management plan. The plan must be clear and specific: see Connolly v. Connolly and PGT, 2018 ONSC 5880.

[144] Mary has not submitted a management plan nor a guardianship plan. Her position is that once her father has undergone a capacity assessment and found to be incapable, she will submit her plans to the PGT. This is contrary to the requirements under the SDA which mandate management and guardianship plans in order for the PGT and the Court to be able to assess whether the guardianship is viable and in the incapable person’s best interests. The plans require detail with respect to both short and long-term planning and input from the incapable person where feasible.

[145] Mary’s evidence was that she intended to remove Jack from her parents’ lives, perhaps permanently. This is contrary to her father’s stated wishes and would displace a status quo which has now been in place for over three years. Mary’s lack of a guardianship and management plan does not permit the Court to properly assess how Mary plans to manage her parents’ assets or their long-term care requirements. I agree with Mr. Donovan that the lack of such plans is fatal to Mary’s Application.

[146] While of less importance given the other outstanding issues, Mary has placed herself in a conflict of interest. Her evidence was that if she is appointed a guardian for her parents, she would not be providing the accounting requested in her parents’ Application. Given the outcome of this Application and the companion Application, the conflict of interest concern is no longer relevant.

[147] Finally, the SDA requires that the appointment of a guardian be denied if there is a less restrictive course of action as set out below:

22(3) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of managing property; and

(b) is less restrictive of the person's decision-making rights than the appointment of a guardian.

55(2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of personal care; and

(b) is less restrictive of the person's decision-making rights than the appointment of a guardian.

[148] In Simpson v. Mehta, 2023 ONSC 3063, the Court held at para. 20 that where there is an existing POA made when the donor had capacity, that POA should be respected unless there is strong or compelling evidence of misconduct by the attorney. The Court went on to say that a standard of perfection is not required by those providing care.

[149] In the case at bar, there are existing POAs which have not been displaced and which have been found by this Court to have been made when Manuel had capacity. Mary’s options cannot be considered the “least restrictive” as they involve changes which are not in accordance with Manuel’s wishes, including relocation to Toronto (at least part of the time) and removal of Jack as the parents’ caregiver.

[150] Appointment of a guardian is an invasive step because it involves the appointment of a person who has complete control over the incapable person’s affairs and decisions. Manuel has made it clear he does not want Mary to have that authority. The least restrictive option is the status quo which permits Jack to act pursuant to his authority under the POAs as needed.

C. The 2020 POAs

[151] Mary’s Application seeks to displace the 2020 POAs on the grounds of incapacity. However, much of her counsel’s argument focused on concerns about Jack’s credibility and trustworthiness

[152] Indeed, according to Mary, all of her actions since early 2020 have been in response to her concerns about Jack’s criminal past and her suspicions in relation to his real intentions with respect to their parents. She focused on the “seismic shift” in her parents’ attitudes shortly after Jack’s arrival in Canada. Specifically, she spoke of their intention to hire Jack as their full-time caregiver when they had had an acrimonious relationship with Jack in the past and had not needed a full-time caregiver, their criticism of her management of their finances which had previously been operating without incident, and their alleged shock at discovering she was on title to both Conti and Westmount.

[153] In response to this shift, Mary moved funds from accounts which she held jointly with her parents into accounts in her own name in order to ensure they remained intact. She did this out of distrust her brother.

[154] Notwithstanding Mary’s concerns about Jack, which will be further addressed below, the test to set aside a POA is a stringent one. As per Abel v. Abel et al., 2017 ONSC 7637 at para. 33, there must be evidence of misconduct or neglect on the part of the attorney and that the best interests of the incapable person are not being served by the attorney.

[155] There is no evidence before the Court with respect to any misconduct on Jack’s part in his role as POA for his parents. Mary’s evidence related solely to Jack’s criminal past and her speculation about what Jack might do in future.

[156] Further, there was the evidence of Maria Marques and Carlo Nunes, Jack and Mary’s aunt and cousin respectively. Both deposed that Jack was taking good care of his parents. This evidence was not displaced in cross-examination. Of specific concern was the evidence of Mr. Nunes that Mary and her husband called him and threatened to sue him if he became involved in this matter.

[157] Clearly, there is insufficient evidence to set aside the 2020 POAs. However, the Court is alive to Mary’s concerns about Jack’s past and particularly his troubling denial of a stabbing incident in Portugal. While there is insufficient evidence to remove Jack as POA, given his dated criminal past and the current evidence of his conduct, there will be a strict accounting regime put in place to ensure the Court’s concerns about any dissipation of the parents’ assets by either Jack or Mary are addressed.

[158] Given all of the above, Mary’s Application must be dismissed with certain conditions as set out below.

The Accounting Application (The Parents’ Application)

A. Title to Conti and Westmount

[159] Mary continues to be a joint owner on the Conti and Westmount properties. She has now conceded that they are beneficially owned by her parents. The parents request that Mary remove her name from title so that the properties may be sold. Jack supports the removal of Mary’s name from title to both properties and their sale.

[160] To be clear, I do not accept Jack’s contention that Mary “tricked” her parents into changing title to Conti and Westmount. The uncontradicted evidence of Mr. Quaglietta provides a clear explanation of why the title transfer took place and I accept that explanation. If Manuel had capacity in 2020, certainly there is a presumption he was capable when he met with Mr. Quaglietta in 2004. If he has since forgotten the transaction or the reason for it, that is not Mary’s fault.

[161] The Court shares Mary’s concern about the necessity of ensuring her parents’ largest capital assets (Conti and Westmount) are protected. Title to the properties should revert to the parents’ names but use of the sale proceeds will require management by a third party.

B. Mary’s Accounting and Transfer of Funds

[162] Mary concedes that she still has access to some of her parents’ income and bank accounts and that she retains in her own account some funds that are beneficially owned by her parents. All of these assets must revert to the parents given this Court’s findings in Mary’s Application.

[163] Mary has indicated that she is willing to provide a proper accounting. The main dispute relates to how far back the accounting should go. Mr. Kappy, on behalf of the parents’ LG, submits that the accounting should go back to 1998 as that is when Mary initially became involved in her parents’ affairs.

[164] Mary submits that providing an accounting back to 1998 is simply impractical given the lack of available records. Her evidence, which I accept, was that she was not acting in a fiduciary capacity for her parents prior to 2018. Prior to then, they handled their own financial affairs and she was simply helping them out as a loving daughter.

[165] Mary’s position is that she has provided banking records as far back as she can. In any event, these are joint accounts to which her parents, via Jack, would have access.

[166] I accept Mary’s evidence. It is simply impractical to provide an accounting back to 1998. Further, any of the transactions questioned by Jack did not occur until 2019. As such, Mary should provide a detailed accounting for all transactions undertaken on behalf of her parents from 2018 forward. She must also return all funds in her personal accounts in which her parents have a beneficial interest.

[167] Given all of the above, the Parents’ Application is granted, in part, with conditions set out below.

ORDERS AND COSTS

[168] Mary’s Application is dismissed on terms, and the Parents’ Application is granted in part, on the following terms:

a. Mary is to provide a detailed accounting of all transactions undertaken on behalf of her parents from January 1, 2018 to February, 2020. The accounting is to be provided within 90 days of the date of this judgment.

b. Mary is to relinquish her joint ownership in any bank accounts owned by her parents.

c. Mary is to return to her parents any funds she holds on their behalf in her personal bank accounts.

d. Title to Conti and Westmount is to revert to the parents with Mary to cooperate as required. Jack is not to receive an interest in either property.

e. Jack is to provide an annual accounting to Mary of all of his parents’ assets, liabilities, income and expenses in both Canada and Portugal (that are under his management) with vouchers commencing October 31, 2023 for the period of October 31, 2022 to October 31, 2023 and continuing on October 31st in each year thereafter (“the accounting year”).

f. Jack shall be compensated for his parents’ caregiving at the rate of EUR 5,000 per month. Neither Jack nor Mary shall receive any retroactive compensation for their caregiving or management of their parents’ property.

g. Jack, Manuel and Mary shall mutually appoint a third-party administrator to manage the sale and sale proceeds of Conti and Westmount. The administrator shall also receive and manage all of the parents’ pension, rental and investment income in Canada. The sale proceeds of both properties and the parents’ pension and rental income and other investments shall remain in Canada and may be paid out to Manuel (or to Jack on Manuel’s direction) for their care and needs in Portugal in the discretion of the administrator. The administrator shall report to Jack, Mary and Manuel on a semi-annual basis and shall be compensated based on his/her responsibilities and reasonable fee schedule.

Costs

[169] The parties have provided bills of costs and supporting documentation. Given the outcomes of the Applications, I will receive written submissions of no more than four double spaced pages from each party. The submissions should address the scale of costs sought, how they should be apportioned between the parties and the applications, and whether costs should be paid by any party personally or from the parents’ assets. In preparing their submissions, counsel are to keep in mind that in this Court’s view, no party had complete success on their Application.

[170] Costs submissions are to be uploaded to Caselines within seven business days of the release of this decision.

C. Gilmore, J.

Date: August 16, 2023