COURT FILE NO.: CV-22-675454-00ES

DATE: 2023-12-18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARINA MOUTOUSSIDIS Applicant

– and –

GRIGORIS MOUTOUSSIDIS, IOSIF (JOE) MOUTOUSSIDIS, ANASTASIA THEODORA MOUTOUSSIDIS Respondents

David M. Goodman, for the Applicant

Zara Wong, agent lawyer for the Public Guardian and Trustee, litigation guardian for John Moutoussidis, a person under disability

HEARD: November 3, 2023

REASONS FOR JUDGMENT

DIETRICH J.

Overview

[1] John Moutoussidis (the “Respondent”) and his spouse Marina Moutoussidis (the “Applicant”) were travelling in Greece in the summer of 2016. Unfortunately, on July 31, 2016, the Respondent had a serious, life-altering fall onto a concrete floor. He sustained a severe brain injury.

[2] The Respondent was admitted to a hospital in Greece, where he stayed until September 9, 2016. He was then transferred to a rehabilitation clinic in Greece. He was treated at that clinic until January 3, 2017.

[3] On February 8, 2017, he was flown back to Canada by air ambulance and admitted to Sunnybrook Hospital. In August 2020, the Respondent was transferred to Hellenic Home, a long-term care facility in Scarborough, Ontario, where he continues to reside.

[4] The Respondent has three adult children from a previous marriage. He and the Applicant have no mutual children.

[5] The Applicant brought an application seeking to be appointed as the guardian of the Respondent’s property and person (the “Guardianship Application”). By Order dated June 29, 2017 (the “Pattillo J. Order”), Pattillo J. appointed the Applicant as guardian of the Respondent’s property and person (“Guardian”). Justice Pattillo also ordered that the Applicant pass her accounts within six months of the first anniversary of her appointment. The Applicant did not pass her accounts as ordered, and her accounts are the subject of this hearing.

[6] On June 17, 2021, the Applicant brought a motion (the “Motion”) regarding the sale of the matrimonial home in Newmarket, Ontario (the “Newmarket Property”). The Applicant deposed that the Newmarket Property was located too far from the Respondent, whom she visited nearly every day, and it was too large a home for her on her own. Justice McEwen approved the sale of the Newmarket Property, the purchase of a condominium in the City of Toronto (the “Condominium”), and the Applicant’s Amended Management Plan. Justice McEwen also ordered the Applicant to pass her accounts for the period June 29, 2017 to July 31, 2021 no later than November 30, 2021, and he ordered that she pass her accounts every two years thereafter.

[7] The Newmarket Property was owned by the Applicant and the Respondent as equal tenants in common. Title to the Condominium is held in the same way.

[8] The Applicant and the Respondent also held a joint bank account (the “Joint Account”) from which they paid household expenses. The Applicant failed to account for the funds in the Joint Account in her initial accounting, but when asked to provide an accounting for the Joint Account, the Applicant provided some accounting information.

[9] The deposits into the Joint Account include the Respondent’s monthly Canada Pension Plan (“CPP”) payments, Old Age Security (“OAS”) payments, Registered Income Fund (“RIF”) income, and the Respondent’s Tax-Free Savings Account funds.

[10] Following the sale of the Newmarket Property and the purchase of the Condominium, the Applicant deposited one half of the net sale proceeds ($200,866.86) into the Joint Account. She deposited the other half into her own bank account. The Applicant admits that she used the Joint Account for her own expenses and that she comingled the Respondent’s funds with her own when she deposited her own CPP, OAS, and other income, including income from her business, into the Joint Account.

[11] The Applicant concedes that all the payments for the Newmarket Property and for the Respondent’s expenses, such as setting up his room at Hellenic Home, and his clothing, were made from the Joint Account. The Applicant does not deny that she also used the Joint Account to pay some of her own expenses.

[12] On January 19, 2022, the Applicant brought the within application to pass her accounts for the period June 29, 2017 to July 31, 2021. The Public Guardian and Trustee (the “PGT”) is acting as litigation guardian on the passing of accounts only.

[13] The PGT raised objections to the Applicant’s accounts, to which the Applicant replied by filing a Reply to Notice of Objection to Accounts and a letter from her counsel providing additional information. The parties have had multiple exchanges of correspondence, but they have been unable to resolve all of the PGT’s objections.

The Objections to the Accounts

[14] The PGT submits that there are four main categories in respect of which the PGT’s objections have not been resolved. They involve a) expenses incurred in preparing the Newmarket Property for sale; b) unknown debits and credit card payments from the Joint Account; c) the Applicant’s out-of-pocket expenses relating to the Respondent incurred prior to the Guardianship Application; and d) the Applicant’s legal fees for the Guardianship Application and the Motion.

a. Expenses Incurred in Preparing the Newmarket Property for Sale

[15] The Applicant claims to have spent $30,931.58 on the Newmarket Property, for which she has reimbursed herself from the Respondent’s funds.

[16] However, the Applicant has only produced vouchers for $17,640.78 worth of expenses. The PGT submits that the Respondent is entitled to reimbursement of $8,820.39 (being one half of $17,640.78). The PGT submits that the Respondent should not be responsible for the remaining $22,111.19, for which the Applicant has no voucher material. Therefore, the Applicant should reimburse the Respondent for $22,111.19.

b. Unknown Debits and Credit Card Payments from the Joint Chequing Account

[17] The PGT submits that there are cash withdrawals, miscellaneous payments, transfers to other bank accounts, Mastercard payments, and Visa payments totalling $128,973.02 (the “Unknown Debits”). Of this amount, the Applicant concedes that the Respondent is not responsible for the Mastercard payments of $1,282.60.

[18] The PGT is not satisfied with the accounting for the Visa payments, representing $75,339.02 (the “Visa Payments”), which form part of the Unknown Debits in respect of which the Applicant produced some Visa statements but no supporting vouchers.

[19] The remaining $52,351.40 of the Unknown Debits comprises transfers to other bank accounts, cash withdrawals, miscellaneous payments, and miscellaneous purchases (the “Transfers, Withdrawals, and Other Payments”) as outlined in the Applicant’s accounting. The Applicant has not produced any vouchers for these transactions. The PGT submits that the Applicant should reimburse the Respondent for $52,351.40 for the Transfers, Withdrawals, and Other Payments.

c. Out-of-Pocket Expenses Incurred Prior to the Guardianship Application

[20] The Applicant seeks reimbursement of EUR 55,501.38 for expenses incurred in Greece and $18,192.52 for expenses incurred in Greece on behalf of the Respondent prior to her appointment as Guardian. These expenses include the costs of an air ambulance from Greece to Toronto. The Applicant has provided vouchers for EUR 36,086. She has provided no vouchers for the expenses incurred in Canadian dollars. The PGT submits that the Applicant is not entitled to reimbursement for the EUR 19,415.38 or $18,192.52 for expenses incurred in Greece, for which she has produced no vouchers.

[21] The Applicant also seeks $31,447.05 as reimbursement for medical expenses incurred in Canada on behalf of the Respondent prior to her appointment as Guardian. The PGT submits that the Applicant is not entitled to reimbursement for this amount, for which she has submitted no vouchers.

d. Legal Fees for the Guardianship Application and the Motion

[22] The Applicant seeks a reimbursement of $12,786.56 from the Respondent’s property for legal fees she incurred relating to her Guardianship Application and the Motion. The PGT submits that neither Pattillo J., who heard the Guardianship Application, nor McEwen J., who heard the Motion, awarded costs to the Applicant in those matters. These judges did award costs to the PGT in each case. The PGT submits that neither the Applicant’s Management Plan nor the Amended Management Plan sets out these legal fees as liabilities of the Respondent.

Issues

[23] The issues to be determined on this application are as follows:

1. Should the Applicant reimburse the Respondent for expenses incurred regarding the sale of the Newmarket Property, for which the Applicant has produced no vouchers?
2. Should the Applicant reimburse the Respondent for the Visa Payments out of the Joint Account and for the unknown Transfers, Withdrawals, and Other Payments from the Joint Account, for which she has not fully accounted?
3. Should the Applicant be reimbursed by the Respondent for medical and other expenses purportedly incurred on behalf of the Respondent by the Applicant in Greece and in Canada prior to her Guardianship Application, for which the Applicant has not produced vouchers?
4. Should the Applicant be reimbursed for legal fees incurred by her on the Guardianship Application and the Motion?

Positions of the Parties

[24] The PGT submits that, as a fiduciary, the Applicant is bound to keep records and accounts for the trust property under her control, and to prove the legitimacy of disbursements made on behalf of the Respondent, an incapable person. The PGT further submits that the Applicant’s accounts ought to be scrutinized to the same high standard to which all fiduciaries are held.

[25] The PGT submits that because of the deficiencies in the Applicant’s accounting, including her failure to provide vouchers to prove the expenditures, the Applicant ought to reimburse the Respondent for amounts paid out of his property. Further, the Applicant should not be reimbursed for medical and living expenses she claims to have incurred in Greece prior to the Guardianship Application; medical expenses she claims to have incurred in Canada prior to the Guardianship Application; and past legal fees for the Guardianship Application and the Motion.

[26] In summary, the PGT submits that the Applicant ought to reimburse the Respondent for the following:

Unsupported Expenses for the Sale of the Newmarket Property $22,111.19

Visa Payments $73,156.61

Transfers, Withdrawals, and Other Payments $52,351.40

[27] And, the PGT submits that the Applicant should not be entitled to reimbursement from the Respondent’s property for the following:

The pre-Guardianship Application (2016 and 2017) Medical and Other Expenses incurred in Greece EUR 19,415.38 $18,192.52

The pre-Guardianship Application (2017) Medical Expenses incurred in Canada $31,447.05

Legal Fees $12,786.56

[28] The Applicant submits that she should not be held accountable for a “meticulous accounting” and she “should not be subject to a meticulous inspection of every item of expense.” The Applicant also submits that she was focussed on looking after the Respondent following his accident and not tracking every single expense, she has produced all the receipts in her possession, and it is unreasonable to assume that the expenses she incurred on the Respondent’s behalf were not reasonably incurred by her as his Guardian.

Law

On Fiduciary Duties

[29] A fiduciary’s duty to account and maintain records concerning activities respecting trust property is a firmly established principle in law: see s. 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), and r. 74.17 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[30] Section 32 of the SDA provides that 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. Subsection 32(6) of the SDA provides that a guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property.

[31] Pursuant to the SDA, a guardian of property has a fiduciary obligation to carry out his or her obligations with honesty and due care and attention. The core of these obligations includes the duty to be in a position at all times to prove the legitimacy of disbursements made on behalf of the estate: Aragona v. Aragona (Guardian of), 2012 ONCA 639, 298 O.A.C. 131, at para. 21.

[32] The duty of a trustee or other accounting party is to have his or her accounts always ready, to afford all reasonable facilities for inspection and examination, and to give full information whenever required: Sandford v. Porter (1889), 16 O.A.R. 565 (C.A.), at p. 571.

On Costs

[33] The court’s authority and discretion to grant costs arises out of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), which provides that, subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[34] The SDA is silent on the costs of guardianship applications. Therefore, the costs are in the discretion of the court pursuant to s. 131(1) of the CJA. Rule 57.01(1) of the Rules sets out the factors to be considered to ensure that a costs award is fair and reasonable in light of the facts and circumstances of each case. The Rules also require that a party seeking costs must serve a costs outline or bill of costs and file it with the court.

Analysis

Should the Applicant reimburse the Respondent for expenses incurred regarding the sale of the Newmarket Property, for which the Applicant has produced no vouchers?

[35] For the reasons that follow, I find that the Applicant must reimburse the Respondent for the $22,111.19 that she paid from the Joint Account for expenses she claims to have incurred in preparing the Newmarket Property for sale.

[36] The Applicant has reimbursed herself $30,931.58 from the Respondent’s property for this expenditure. However, the Applicant has only produced vouchers for $17,640.78 worth of expenses.

[37] The PGT submits that the Respondent, as a 50-per cent owner of the Newmarket Property, is entitled to reimbursement of $8,820.39 (being one half of the $17,640.78 supported by vouchers). The PGT submits that the Respondent should not be responsible for the remaining $22,111.19, for which the Applicant has produced no voucher material.

[38] Even if the Applicant had voucher material for the full $22,111.19, she would only be entitled to reimburse herself for $11,055.60, being one half of the amount allegedly spent. This is so because, as a 50-per cent owner of the Newmarket Property, she would be responsible for one half of the costs.

[39] I find that it is more likely than not that all of the preparations to sell the Newmarket Property took place after the Motion, at which the Applicant sought the court’s approval to sell the Newmarket Property. The Motion was heard on June 17, 2021. By this point, the Applicant had been acting as Guardian for nearly four years. The Pattillo J. Order directed her to pass her accounts for her first year as Guardian within six months of her appointment. The Applicant breached that Order. On the Motion, McEwen J. ordered the Applicant, for a second time, to pass her accounts. By then, at least, it ought to have been very clear to the Applicant that she was required to pass her accounts, and she was required to account for each and every expenditure made on the Respondent’s behalf, with proof. The Applicant was represented on both the Guardianship Application and the Motion. It would be surprising if her counsel did not explain to her the process for a passing of accounts, especially in light of the fact that she was in breach the Pattillo J. Order. If the Applicant expected that the Respondent would pay for one half of all expenses relating to the Newmarket Property to prepare it for sale, it is not too much to ask that she prove these expenses with receipts or vouchers.

Should the Applicant reimburse the Respondent for the Visa Payments out of the Joint Account and for unknown Transfers, Withdrawals, and Other Payments from the Joint Account, for which she has not fully accounted?

[40] For the reasons that follow, I find that the Applicant must reimburse the Respondent for $71,419.91 of the $75,339.02 on account of the Visa Payments from the Joint Account. She must also reimburse the Respondent $52,351.40 for the Transfers, Withdrawals, and Other Payments for which she has produced no vouchers and for which she has not met her onus to show that the Respondent benefitted from these Transfers, Withdrawals, and Other Payments.

[41] Regarding the Visa Payments, the PGT submits that the Respondent should not be responsible for most of these expenses. The PGT accepts that the Respondent should be responsible for hospital parking charges for the Applicant’s visits to the Respondent ($74.25), his share of CAA Insurance ($2,051.66), and his share of moving costs ($56.50). This leaves $73,156.61 of the Visa Payments in dispute. The PGT submits that the Applicant should reimburse the Respondent for this amount.

[42] As noted, in her initial accounting, the Applicant did not disclose the Joint Account as one of the Respondent’s assets, notwithstanding that the Respondent is a joint holder of it and his monthly income as well as his share of the net proceeds from the sale of the Newmarket Property were deposited into it. When the PGT discovered the Joint Account, it sought the Visa credit card statements relating to the Visa Payments from the Joint Account. The PGT submits that the Applicant did not disclose all such credit card statements and gave no reason for her failure to do so. The PGT objected to several of the expenses as reflected on the statements that were produced. The objections that have not been withdrawn include objections for payments made, allegedly on the Respondent’s behalf, for gas, groceries, MTO, LA Fitness, Comwave (internet), Rogers (television), Home Depot, LCBO, Voyageur Medical, Paul’s Service Centre, Winners, Marshalls, Coach, Transat Holidays, Canadian Tire, restaurants, other retails stores, and legal fees.

[43] The Applicant did not provide receipts or vouchers for any of the Visa statement expenses. She submits that the “vast, vast majority relate to [the Respondent].” Specifically, she submits that the gas expense was for her trips to and from Sunnybrook Hospital and she also submits that, at a minimum, the Respondent should pay for one half of the house internet ($3,393.23) and one half of the Rogers television ($608.18).

[44] Regarding the gas charges incurred over the accounting period, it appears that the Applicant spent approximately $3,473.39. Given that the PGT did not object to the Applicant seeking reimbursement for her parking charges at Sunnybrook Hospital when the Applicant visited the Respondent, I find that it is reasonable that the Applicant also be permitted to seek reimbursement for a portion of her gas expense. There is no evidence to suggest that the Applicant only used her car to drive to and from the hospital and the long-term care facility to visit the Respondent. Nor is there evidence of how much of the gas expenditure likely relates to the hospital and long-term care visits. I consider a reasonable reimbursement to the Applicant for the gas expense to be $1,736.70, being one half of the expense shown in the accounts.

[45] Regarding the house internet and the television expenses, I disagree with the Applicant’s position. There is no evidence to suggest that the Respondent is benefitting or has benefitted from these internet and television charges at the Newmarket Property or the Condominium. The Respondent’s expenses at the long-term care facility include television charges of his own.

[46] Regarding the other charges, I find that the Applicant should be required to reimburse the Respondent for $71,419.91. While the disputed Visa card expenses were being incurred, the Respondent was in hospital or long-term care, in a vegetative state. It is not realistic to think that he was benefitting from expenses for restaurant food, liquor, groceries, or hardware, among other expenses. The Applicant has not met her onus to show that the Respondent was the beneficiary of the purchases made. And, the Applicant has not discharged her core duty to be in a position at all times to prove the legitimacy of disbursements made on behalf of the incapable person’s estate: Aragona.

[47] The Applicant has also not shown that the Respondent has benefitted or is benefitting from any of the Transfers, Withdrawals, and Other Payments. Again, the Applicant produced no voucher material in support of these transactions. These failures are clear breaches of her fiduciary duties as Guardian.

[48] In the result, I find that the Applicant must reimburse the Respondent for $71,419.91 on account of the Visa Payments from the Joint Account. She must also reimburse the Respondent $52,351.40 for the Transfers, Withdrawals, and Other Payments.

Should the Applicant be reimbursed by the Respondent for medical and other expenses purportedly incurred on behalf of the Respondent by the Applicant in Greece and in Canada following the Respondent’s accident and prior to her Guardianship Application, for which the Applicant has not produced vouchers?

[49] For the reasons that follow, I find that the Applicant should be entitled to set off against the amount owing to the Respondent an amount on account of expenses, including medical expenses, which she incurred in Greece following his accident and before she was appointed his Guardian.

[50] It is undisputed that the Respondent sustained a debilitating head injury from his fall, which required extensive hospitalization in Greece, followed by a lengthy period of rehabilitation. There is no evidence of medical insurance to cover these costs. I find it more likely than not that the Applicant had no option but to stay in Greece to assist in the Respondent’s care and to make the arrangements for his eventual return to Canada by air ambulance. But for the accident, there is no evidence to suggest that the Applicant would have extended her stay in Greece. It is reasonable that the Respondent share in the expenses incurred by the Applicant for his medical care and expenses that the Applicant incurred in extending her stay for his benefit.

[51] Unfortunately, the Applicant has not produced vouchers in support of the expenses she incurred. I regard the failure of the Applicant to produce vouchers in respect of these expenses differently than her failure to produce vouchers after she had been appointed a Guardian. In my view, the Applicant should not be held to the same standard as a Guardian for this period. There is no evidence to suggest that she was getting legal advice on guardianship issues at that time, including the need to keep track of expenses and gather receipts for expenses so that she would be in a position to provide an accurate accounting to the Respondent or his representative. I accept that her attention was trained on the Respondent’s condition and his care. This would explain the lack of careful record keeping during that time.

[52] It is reasonable to conclude that in addition to payments for uninsured medical costs, the Applicant would have had incurred some expense for meals and accommodation for herself. Even if she stayed with friends or relatives, it is reasonable to conclude that she would have made some contribution to her host’s household. I can appreciate that it may now be difficult, if not impossible for the Applicant to obtain receipts in Greece for these expenditures some six years later.

[53] Accordingly, I would permit the Applicant to set off against the amount owing to the Respondent EUR 9,707.76 and $9,096.26 for expenses she incurred in Greece relating to the Respondent and his care.

[54] I decline to permit the Applicant any set off in respect of the $31,447.05 she has claimed for “Medical Expenses” in Canada, for which she has produced no vouchers. I find that this description of an expense is too vague. If these expenses were incurred at a hospital or clinic, it would seem that it would not be particularly difficult to collect copies of invoices as proof of the medical goods or services provided.

Should the Applicant be reimbursed for legal fees incurred by her on the Guardianship Application and the Motion?

[55] For the reasons that follow, I find that the Applicant should not be reimbursed for legal fees incurred by her relating to the Guardianship Application (heard in June 2017) and for the Motion (heard in January 2022). The Applicant seeks reimbursement for legal fees for these matters in the amount of $12,786.56.

[56] The PGT submits that neither Pattillo J., who heard the Guardianship Application, nor McEwen J., who heard the Motion, awarded costs to the Applicant in those matters. The respective judges who heard these matters did award costs to the PGT in each case.

[57] There is no evidence to suggest that the Applicant sought costs on either the Guardianship Application or the Motion or that she filed a bill of costs or costs outline as required by the Rules. She was represented by a lawyer at each proceeding. More than six years have passed since the Guardianship Application and nearly two years have passed since the Motion. The Applicant did not include in her Management Plan or her Amended Management Plan any legal fees as a liability of the Respondent.

[58] The judges who presided over the hearings were best placed to determine the Applicant’s costs, if any. They heard the facts and the arguments and observed the conduct of the parties. With this experience, they could have properly considered the relevant factors as set out by the Rules in in light of the principles of reasonableness, fairness, and proportionality. Unfortunately, I do not have the benefit of any insight into the earlier proceedings and therefore, cannot be confident that any attempt to fix retrospective costs would be reasonable or fair.

[59] I find that it would be unfair to the PGT to reopen the two previous proceedings solely for the purposes of considering a claim by the Applicant for costs, which could have been made at the time of each hearing.

Disposition

[60] An Order shall issue including the following:

1. The Applicant shall reimburse the Respondent for: a) $22,111.19 for disbursements relating to the sale of the Newmarket Property; b) $71,419.91 for Visa Payments out of the Joint Account; and c) $52,351.40 for unknown Transfers, Withdrawals, and Other Payments out of the Joint Account.

2. The Applicant shall be entitled to a set off against the amounts owing in paragraph 1 above in the amount of: a) EUR 9,707.76 for expenses incurred in Greece prior to her appointment as Guardian; and b) $9,096.26 for expenses incurred in Greece prior to her appointment as Guardian.

3. The Applicant shall not be reimbursed from the Respondent’s property for: a) $31,447.05 for medical expenses incurred in Canada; and b) $12,786.56 for legal fees relating to the Guardianship Application and the Motion.

Costs

[61] The PGT has been overall successful on this application and is entitled to costs. In the PGT’s bill of costs, the PGT seeks costs on a full indemnity basis of $23,514.74, on a substantial indemnity basis of $21,163.26, or on a partial indemnity basis of $14,108.84.

[62] The PGT submits that full indemnity costs are appropriate in this case in which the Applicant did not meet the high standard of care of a fiduciary. The PGT also submits that considerable time was required to review the accounts because there were many deficiencies.

[63] Having heard the submissions of counsel, I fix the PGT’s costs at $15,000, inclusive of HST and disbursements. I find this to be a fair and reasonable award having regard to the factors engaged under r. 57.01(1), including the result, the amounts in issue, complexity, and proportionality. The costs shall be paid by the Applicant personally within 30 days.

Dietrich J.

Released: December 18, 2023