Court File and Parties

COURT FILE NO.: 29046/22 DATE: 2024-04-19 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF Marija Tomas, deceased

BETWEEN:

LIDIJA TOMAS Applicant – and – NENAD TOMAS Respondent

Counsel: Self-Represented (Applicant) Self-Represented (Respondent)

HEARD: November 20, 2023, January 2, 2024, March 7, 2024

BEFORE: Rasaiah J.

Reasons on Application and Counter-Application

Overview

1The applicant is Lidija Tomas. The respondent is Nenad Tomas. The parties are siblings. The deceased Marija Tomas (“deceased”) was their mother. The deceased died on September 26, 2022, with a will that was prepared August 2, 2017 (the “Will”). The parties are the named estate trustees, jointly and severally.

2The deceased had also executed powers of attorney for property and personal care on the same day as the Will. The respondent was the named attorney under both powers of attorney and the applicant was named as the alternate.

3The applicant commenced the within application, seeking: damages with respect to various actions of the respondent while acting as attorney under the power of attorney for property (the “POAP”); removal of the respondent as an estate trustee; direction on payment of debts and division of proceeds held in trust from the sale of the property municipally known as 875 Second Line West, Sault Ste. Marie, Ontario (“875 Second Line”); and damages related to the respondent’s various actions as estate trustee and his nonpayment of the mortgage registered on the property municipally known as 500 Wallace Terrace, Sault Ste. Marie, Ontario (“500 Wallace Terrace”).

4The respondent commenced a counterapplication seeking: repayment of/credit for an alleged loan he states he made to the applicant in the amount of $25,000; return of personal property the applicant removed from 875 Second Line; direction on payment of taxes; direction on disbursement of the remaining proceeds of the sale of 875 Second Line; and return of moneys owed to the estate taken by the applicant in the approximate amount of $3,200.

5The parties were self represented at the hearing.

6The case was adjourned on more than one occasion to permit the parties time to address deficiencies identified in their filings, to provide each with time to file all information and documents they were seeking to rely on and that the court required. Both parties were given more than ample time to prepare, deliver and file all documents they wished to rely on for this proceeding.

Introduction to and Summary of Findings

7The parties’ father, the deceased’s husband, died in May of 2014. After his death, the deceased owned 875 Second Line and 500 Wallace Terrace. The properties were free and clear of any debt. The deceased had no debt other than expenses related to maintenance and upkeep of the properties. 500 Wallace Terrace was an investment property, a rental property with two apartments. The deceased also had personal property including jewellery, personal property of her late husband including expensive machines and tools, other home contents, and investments. She also had an income stream of government benefits and pensions in the amount of approximately $2,500 per month. Over the years, she would also receive from time-to-time other income from government related benefits.

8Prior to the deceased’s death, the applicant states she would discover that the respondent had a serious substance abuse issue; that he had significantly mortgaged 875 Second Line and was selling same; that he had defaulted on payment of many debts, including taxes on both properties, utilities, and the mortgage on 500 Wallace Terrace; that he had removed and/or sold items belonging to the deceased (and/or her late husband); and that he had misappropriated funds and mismanaged the deceased assets causing serious damage as a result, including damage to the value of 500 Wallace Terrace.

9As a general comment, the applicant for the majority of her submissions was able to support same with documentation. The same could not be said of the respondent, despite many opportunities being provided to him to do so, recognizing his self-representation.

10There were issues of credibility for me with respect to the respondent’s evidence and submissions. There was evidence that contradicted his evidence. He presented submissions that were contrary to his own materials filed. He made many bald statements that were not supported by any other evidence.

11On credibility, I found that the applicant was forthcoming and agreed to facts against her interest. The respondent indicates that he did the same, however, with respect to the facts that he agreed to, there was clear documentary evidence, and there would be no way to dispute same, for example, the 500 Wallace Terrace mortgage and mortgages taken out on 875 Second Line.

12Based on the evidence that I accept, I find that the applicant has established that the respondent breached his duties under the POAP, and as an estate trustee. After the deceased’s death, he continued to be uncooperative, allowing various estate debts to accumulate and damage to continue to occur to estate assets. In my view, this is a sad and serious case of misconduct/mismanagement engaged in by the respondent to the detriment of the deceased, while she was alive, and thereafter, to her remaining estate.

13The evidentiary record supports that the deceased in this case suffered from dementia on a declining basis. The respondent claims the dementia diagnosis was in 2020. The medical records clearly show the first diagnosis in 2017. The evidentiary record establishes that the respondent knew or ought to have known the deceased’s capacity and health issues. He essentially claims to have been her primary caregiver since 2014. Further, I find that the evidence establishes that the respondent in fact appreciated the deceased’s failing capacity much sooner than 2020 and/or as he stated, or he was reckless and/or wilfully blind to it. The medical records would document mental health behaviour of the deceased presented to the treating providers by the respondent himself prior to 2020 and starting in 2018.

14As the deceased’s attorney under the POAP, the respondent did not exercise his powers and duties diligently, honestly or in good faith for her benefit. Almost every action he took was for his own personal benefit.

15The evidence of misconduct in my view is strong and compelling. The respondent used a significant amount of the deceased’s money and/or equity while she was alive to meet his own needs, and some he accessed during time frames where the deceased would have been incapable to appreciate or agree to same, contrary to his position that she always knew and agreed.

16There was a serious lack of evidence establishing legitimacy of the significant disbursements/depletions of the deceased’s assets/equity for the deceased’s benefit prior to her death.

17I reject the respondent’s statements and/or explanations that all uses of the deceased’s assets for his personal benefit were agreed to/appreciated/known by the deceased and/or were gifts and/or an advancement on inheritance and/or for compensation/ recognition, namely that “he took care of his parents”. The facts present as though the respondent treated the deceased’s assets like they were his own without a care for her interests or that of the estate or his sister. While the respondent did not present as admitting same, I agree that on the whole of the evidence, a conclusion can be drawn that the respondent’s alcohol and drug abuse issues likely played a large role in how he conducted himself.

18In the context of what the respondent did, the applicant recognizes that the respondent was going to receive the “more valuable property” on the death of the deceased, namely 875 Second Line, and that she was aware of this decision that was related to the respondent taking care of their parents, however only then, meaning on the deceased’s death, and it was intended by her parents that she would receive the investment property (500 Wallace Terrace).

19I find that the applicant has established that what happened was not what their parents and/or the deceased intended, and that the respondent took advantage of his role as attorney under the POAP. He failed to meet his duties and obligations to the deceased. The history of how the parties’ parents helped each of the applicant and respondent when they were alive, and how they maintained their financial situation supports same. Based on the financial picture it was clear that their parents never overextended themselves at any point to help one or both of their children. The examples the respondent provided do not change this and strengthens the foregoing in my view.

20It is also evident to me that for the most part, the respondent kept what he was doing from the applicant. She would be told only what she needed to know.

21It is equally clear that until the applicant understood the extent of the respondent’s alcohol and drug abuse and what the respondent was doing with the deceased’s assets, she had little involvement with her mother’s financial affairs and trusted her brother. This is not a case in which the applicant was a co-attorney under the POAP. She was only to become attorney if the respondent became unable to act. There were times she asked to assist the respondent with management, and he refused.

22The respondent as the deceased’s attorney had an obligation to keep proper accounts to provide full information whenever required. There was a significant failure on the respondent’s part to maintain records of transactions paid out on behalf of the deceased – amounts, dates, purposes and to whom it was paid. This court provided many opportunities to both parties to file all evidence. Very little accounting was produced. I highly suspect this may be in part due to the respondent’s substance abuse issues. The applicant filed pictures of both 875 Second Line (at the time it was sold) and 500 Wallace Terrace (when she took over) showing significant disarray and ignored mail.

23The deceased’s investments/assets were not protected by the respondent. It is clear that mismanagement occurred.

24Inadequately carrying out one’s duties can result in personal obligation for unsubstantiated withdrawals. See Bellefeuille v. Zinn, 2022 ONSC 5027. It is unlikely that all funds and property can be traced or recovered ever. An award of damages and equitable remedies for breach of fiduciary duty are entirely appropriate in this case.

25After the deceased died, the applicant has established that the respondent continued to be very uncooperative and estate assets continued to be affected as a result of actions of the respondent, which most often were simply out of anger on the part of the respondent towards the applicant for not agreeing to his terms of resolution for the estate.

26The respondent’s behaviour and actions fell far below standards for that of an attorney under a power of attorney for personal property as well as a trustee who has duties and obligations owed to the estate.

27There is clear authority to remove an estate trustee including circumstances in which there has been a breach of their fiduciary duty to a grantor arising from a POAP.

28Comments have been made in case authorities for situations where an estate trustee takes unauthorized funds to the point where they have exceeded any beneficial interest they may be entitled to, stating that such action could justify or equate to disinheritance: Philbin v Orford, 2023 ONSC 6949 (“Philbin”).

29Damages can be awarded to an estate for restitution and/or other losses.

30Costs can be awarded to beneficiaries personally on account of trustee breaches.

31All of the foregoing can be ordered to be paid out of that trustee’s interest in the estate.

32The actions of the respondent as attorney under the POAP and as trustee under the Will supports the relief granted in this case.

Particulars of Considerations for this Decision

General

33The following are my considerations, analysis, and reasons for my decision set out herein.

34For clarity, I have considered all the voluminous materials filed, submissions made, and applicable legal principles/authorities although I may not refer to each and every one specifically.

Jurisdiction

35The POAP in this case was completed in accordance with the laws of the Province of Ontario in Sault Ste. Marie, Ontario and the respondent was the attorney.

36Under the Substitute Decisions Act, 1992, S.O. 1992, c.30 (“SDA”), the attorney acting under a continuing power of attorney for property has a fiduciary duty to the grantor at the point in time when the grantor becomes incapable.

37The SDA is the law governing powers of attorney in Ontario respecting both property and personal care.

38Part IX of the Will states:

IX. GOVERNING LAW My Will shall be governed by and construed in accordance with the laws of the Province of Ontario.

39The Will appoints the parties jointly and severally to be executors and trustees.

40Rule 14.05(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states,

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, (a) the opinion, advice, or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;

41Section 60(1) of the Trustee Act, R.S.O. 1990 c. T.23 states (“TA”),

60 (1) A trustee, guardian or personal representative may, without the institution of an action, apply to the Superior Court of Justice for the opinion, advice, or direction of the court on any question respecting the management or administration of the trust property or the assets of a ward or a testator or intestate. R.S.O. 1990, c. T.23, s. 60 (1); 2000, c. 26, Sched. A, s. 15 (2).

42An estate trustee may bring an application for removal of another estate trustee: TA, s.37. The court also has inherent jurisdiction to do so: Dewaele v. Roobroeck, 2020 ONSC 7534, paras. 50-57.

43Jurisdiction is therefore established for the court to consider the relief requested and this case is properly before this court.

The POAP

General Comments

44An attorney for property is a fiduciary, whose powers and duties must be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person's benefit.

45In the decision Ontario (Public Guardian and Trustee) v. Harkins, [2011] O.J. No. 3313 (S.C.J.), Penny J. stated at para. 27 that a fiduciary's first duty is to see to the best interests of the beneficiary regardless of their stated wishes. This is important in this case because in 2017, the deceased was diagnosed with vascular dementia. She also had COPD. Accordingly, it was incumbent on the respondent to have a heightened awareness in situations that he claims the deceased “agreed” or “appreciated” actions he was taking as her attorney. I find he failed to do so.

46A copy of the POAP for property was filed. It was completed by the same firm that completed the Will (August 2, 2017). It confirms the respondent was appointed as attorney and the applicant was appointed as an alternate, in the event that the respondent could not act.

47The applicant sets out that she and the deceased both trusted the respondent. She at that time would never have imagined that the respondent would “squander everything our parents built”. She further states, “When they came to Canada, they worked hard to give us a better life, he destroyed and shamed all their accomplishments.”

48The respondent presented at one of the dates for hearing that he really did not know much about the powers of attorney. I do not believe him. The evidentiary record establishes that the POAP was used by him more than once to deal with assets of the deceased before she passed. Additionally, in one of his affidavits filed, he sets out his own knowledge that he was designated as attorney. He described this as being “for financial matters and personal care”. Moreover, at a later point during the course of the hearing, the respondent recognized that he knew he was in the role of attorney. Also of note, at one point in early 2020, he had a lawyer who was addressing health care providers at his direction seeking information as to the capacity of the deceased so that he could use the POAP to obtain a mortgage on 875 Second Line. There would be subsequent transactions after this date (more mortgages/remortgaging) using the POAP. Accordingly, there is no question in my mind that the respondent was fully aware of the powers that were bestowed on him by the POAP and that he could use same to deal with the deceased’s assets, which he did, for his own benefit/interests.

49The evidentiary record establishes that the respondent was aware of his mother’s cognitive struggles, and that as such, his statements that he allegedly had her approval for what he did when he did things, is not accepted for all his actions. Based on the medical records filed, a reasonable person in the circumstances of the respondent would appreciate that the role of attorney required caution in its exercise. She suffered from dementia which worsened as she aged, it advanced to delirium.

50In my view, there is ample evidence supporting that the respondent used his authority for his own benefit, taking large amounts of funds without consideration of the impact on the estate, and that he grossly mismanaged the deceased’s assets, including allowing 500 Wallace Terrace to deteriorate and depreciate, not paying bills/debts and failing to account for use of the assets/funds of the deceased. The details of the mortgages he took out, the details of mismanagement and variety of unpaid debts will be discussed further below.

Title Transfers

51Before getting into the specific areas, I address the following. There was some suggestion on the part of the respondent when submitting who should be responsible for 500 Wallace Terrace, that he was a part owner of 875 Second Line and the applicant, 500 Wallace Terrace.

52The transfer documents were filed with respect to 875 Second Line and 500 Wallace Terrace placing the respondent and applicant as joint tenants with the deceased respectively. I agree with the position of the applicant. The parties were not ever beneficial owners, “part owners”. I am satisfied that both the respondent and the applicant were placed on title to the deceased’s properties for estate planning purposes only.

53These transfers shortly followed the time the Will was signed, wherein she specifically devised that each would receive a respective property on her death. They were prepared by the same law firm with no alteration to the Will. The transfer consideration was $2. When one reads the words of the specific devises regarding these properties in the Will, in my respectful view, there is no other interpretation. They were each to receive a property after she died. The respondent did not treat 500 Wallace Terrace like it belonged to the applicant in part. The applicant would find some rental receipts for 500 Wallace Terrace that demonstrates otherwise. The applicant would also depose that the lawyer confirmed to her that she and the respondent held their interests in trust for the deceased and same was to facilitate estate planning.

Validity of the Will, POAs and Transfers

54While at the hearing itself neither party was contesting validity of the documents, and the applicant in one of her affidavits filed indicated she was not contesting the validity of the Will, she still went on to make and/or made various comments in her materials filed that relate to the subject. As such, I have elected to address the topic, in the event there was any misunderstanding of the positions.

55Specifically, the applicant confirmed that although she believes her mother was coerced, she did not wish to challenge the validity of the Will. She went on to state that she believes that the respondent convinced the deceased to make a power of attorney so that he would have control over everything. The applicant sets out, “Our parents were not Will and POA type of people. My father never had a Will or POA”.

56The applicant acknowledges that she was in fact aware that her mother was going to consult a lawyer about a will in 2017. The applicant confirms that she discussed the making of the Will with the deceased in 2017, that she was aware of it, and that the deceased was assured that it was just for estate planning purposes.

57The applicant did not make anything known to anyone at the time with respect to concerns regarding the deceased’s capacity to make the Will and POAP.

58The applicant explains that she raised the outlined concerns in her materials after receiving the deceased’s medical records in the process of pursing this application. I accept that.

59The signatures of the deceased on the Will and POAP present as a single mark – “X”. There was no suggestion that the mark was not made by the deceased. This is a valid method of signature in law.

60The signing of the documents was witnessed by a summer law student and an articling student who, at the time, were with the law firm that prepared the Will and POAP. It is unknown what transpired and/or who else may have been present. The applicant in her materials submits that the law office at no time with respect to the documents signed by the deceased conducted a proper assessment to determine her capacity to instruct preparation of and/or to execute these documents. Acknowledging that the applicant is no claiming invalidity, I note there is insufficient evidence filed to support this contention that they failed in their duties to assess same even if she was. The law firm file was not produced.

61A document from Extendicare Van Daele Nursing Home was filed purporting to list all the medical diagnoses of the deceased. The primary diagnoses were listed as vascular dementia (1/1/2017) and lymphoedema (1/1/1970). The secondary diagnoses were listed as including kidney disease, arthritis, anxiety disorder, stroke, heart failure, benign hypertension, diabetes, retinopathy, neoplasmic ovary, pulmonary embolism, and bronchiectasis. The deceased was born April 15, 1937. Her treating physician was noted as Dr. Rose Gieni.

62While the deceased had dementia and was on medication in 2017, there was no indication that she lacked capacity at the time of making the Will and POAP. Being diagnosed with vascular dementia does not translate to incapacity to make decisions or execute documents. There are various stages. What it means and should mean however, is that caution is required.

63Additionally, the home and medical records show that from time to time the deceased had only intermittent episodes of cognitive difficulty, some explained away due to medication side effects. For example, the deceased was prescribed quetiapine. She had to discontinue this medication because it had cognitive side effects.

64Group Health Centre records note some issues of confusion related to vitamin deficiencies, hypoglycemia and/or COPD exacerbation and/or medications. The applicant was noted to bring the respondent to the doctor in 2018 for showing some confusion and some underlying dementia. Both the applicant and respondent were also reporting some memory issues. This is important because same demonstrates that a decline was happening but after the Will was prepared and signed.

65Van Daele nursing home records filed indicate that on admission to the centre (which was sometime in the fall or winter of 2019 to a convalescent bed), the deceased was assessed as capable of making LTC (long term care) decisions.

66The above being said, the deceased’s confusion and dementia (including an inability to orient as to time and place at times) become more prevalent in the last quarter of 2019 and early 2020. Up until 2019, the respondent was of the view that his mother was still of sound mind. I understand his argument, meaning that the diagnosis of dementia did not mean that she did not in the beginning have a complete inability to understand what was going on. I agree and accept that. However, as she continued to age this changed and varied, and he himself is noted to have observed this according to the records.

67At the end of the day, on this topic, the Will and POAP were executed in August of 2017. The transferred followed in early 2018. The Will, POAP and transfers, were prepared and signed more than a year before significant changes occurred in the deceased’s level of dementia per the records filed. The court did not hear from an expert or receive an expert report that the deceased lacked capacity at the time she signed the Will, POAP and transfers. In terms of such opinions, the evidentiary record would indicate that lack of capacity did not start until sometime in the last quarter of 2019 and was confirmed by March of 2020 by Dr. Dawson.

68Accordingly, I am not satisfied at the time of signing the Will, the POAP and the transfers of title, that the deceased health was of a nature to find that she lacked capacity to either make or sign them.

Decline of the Deceased’s Capacity

69Again, the respondent claims that the deceased’s incapacity arose in 2020. When he emphasized this, I found that he was trying to distance himself from knowledge of her condition and her decline to justify actions he took that preceded same.

70Based on the evidentiary record, I have no doubt that the respondent was aware of dementia issues and much sooner than 2020. I have already commented on some of the evidence that supports same above and will not repeat it. Changes were happening in 2018.

71In 2018 there are records noting the respondent as expressing concern that the deceased was getting up in the middle of the night wandering around the house and being fearful that she would leave the home. In 2018, the respondent is also noted as telling treatment providers that the deceased had difficulties sometimes recognizing him. When the deceased was in Sault Ste. Marie, the respondent was primarily dealing with all treating providers/appointments. The applicant was living in Toronto. This is important when it comes to the knowledge he had or ought to have had and accordingly, the caution he should have exercised.

72The deceased also had COPD which could create temporary occurrences of confusion with lack of oxygen and cognitive state restored on receipt of proper level of oxygen. Further, it was recorded that in 2018, the deceased was also noted as taking too much Ativan in addition to pain medication which was altered because of the effect on her cognitive state. The point is that medications were also affecting the deceased during this time frame and again, the respondent was the primary person dealing with same. He lived with her. These issues should also have triggered caution.

73The medical records filed indicate even more awareness on the part of the respondent of more serious issues in the last quarter of 2019. In November of 2019, this includes a situation in which the deceased alleged to nursing home staff that she got a call from her nephew stating the applicant was going to kill her, yet the last number that had placed a call to her phone was that of the respondent (the staff used *69 to obtain this information). Further, there are notations in November of 2019 of the respondent calling the home to ask that the deceased be medicated to calm her down and expressing a view that she was not getting her medication as required. Ativan was being given and he was told that. The home was also concerned about medication that the respondent was bringing in and spoke to him with respect to same. The respondent also knew in early December of 2019 that the deceased had called police to report a fire at the home when there was no fire. He is noted to have called the home himself because the deceased had also called him about it.

74It is undoubtedly clear from the medical records filed that in March of 2020 that the respondent asked his then lawyer to make requests of the deceased’s treating providers for confirmation of incapacity so that the respondent could refinance what was being described as “his” residence that he shared with the deceased. It is clear that prior to March 17, 2020, this had to have been discussed between the respondent and his then counsel for them to even prepare the letter. It is equally clear that at this time, the doctor responded and opined that deceased had vascular dementia now with delirium and low functional status; and she was not residing at the residence.

75With such a medical history, in my view, there were red flags everywhere for the respondent and as such, signs that he should exercise caution with anything he did and/or what he states the deceased may have agreed to or instructed. The point is that even if I believed she agreed, just because she may have said she approved (if she did) or seemed to have appreciated, does not mean he should have acted. The respondent presented no evidence that he exercised caution. The respondent at no point stated what if any other extra steps he went to, to ensure the understanding he felt his mother had of his actions before March of 2020. Even after March of 2020, the actions he took, again were for his benefit and not that of the deceased (more remortgaging and mortgaging of 875 Second Line) related to his financial needs/interests.

The First Borrowing: Mortgage of Wallace Terrace

76The first borrowing by the respondent occurred before the deceased’s decline and before the POAP was put in place.

77There is no contest that the respondent received $125,000 from a mortgage that was taken out on 500 Wallace Terrace to financially assist him and was for his sole benefit. He acknowledges that he owes this money, and same was to be repaid by him. He acknowledges it was a loan.

78A document from the Royal Bank of Canada (“RBC”) was filed titled “RBC Homeline Plan Allocation Agreement (For Mortgage Loans)”, #6792692001, showing the deceased as the borrower and the subject property being 500 Wallace Terrace, Sault Ste. Marie, ON P6C 2I5. The document shows the principal amount of the mortgage to be $125,000, fixed interest rate at 3.540% per year for a term of 36 months and that it was a closed mortgage. This document is dated October 18, 2018, and presents as being signed by a banking advisor and the respondent. The respondent signed his name on the borrower line for the deceased. The document records the deposit account as 0334421. This is clearly a renewal. It was not explained what if anything the deceased knew of this renewal or amount or why she did not sign.

79The respondent claims that this mortgage was first entered into in 2016 but the applicant states it was 2014. She filed paperwork to support this. She remembers that it was in the year following her father’s death. Their father died in May of 2014. She also filed a copy of the bank’s statement of claim (because the mortgage was defaulted on) that identifies December 8, 2014, as the date of the initial mortgage/credit line.

80The applicant acknowledges that 500 Wallace Terrace was mortgaged to help the respondent out financially and that her brother was being loaned money. She states her understanding was that the funds were to be paid back in one year; the respondent was working at Algoma Steel full-time; and that the respondent had annual income exceeding or up to one hundred thousand dollars. She was not involved in the initial mortgage process or any renewals.

81The respondent did not disagree with the applicant’s stated understanding in reply. He focussed on his financial circumstances and claiming no knowledge of why the deceased wanted the mortgage to be put on 500 Wallace Terrace. He will later suggest that it was because their parents had helped the applicant out significantly in her lifetime.

82The respondent further replied by stating that there was only one year he made over $100,000 but acknowledges that he was employed full-time at Algoma Steel for the majority of the time that he lived at 875 Second Line. He had a good income with bonuses. Additionally, he lived in and had the benefit of use of 875 Second Line until it was sold in 2022. He states he personally contributed to the expenses but provided no documentary evidence to support this bald statement.

83There is no contest that the respondent has not been paying the mortgage for some time. He gave a few reasons, namely his income and secondly, actions of the applicant (not giving him the contents of 875 Second Line which she had to remove from same when it was sold because the respondent was in the hospital at the time and/or because she was not agreeing to his suggestions for the payout of the proceeds of sale of same).

84As to income issues, the respondent claims there were periods he was unemployed and/or not working. He outlined two instances. On my review, they presented as very short periods, and it appears that he still had income during most of those times, whether it was full pay sick benefits or EI. The respondent did not file evidence of his earnings for all years but acknowledges he primarily worked full-time until he retired. I do not accept the respondent’s explanation related to brief periods of not working to account for the accumulation of the debt in this case. In my view, the majority is related to his conscious decision not to pay because he was angry at his sister and/or on earlier instances, substance abuse issues.

85Moreover, the respondent was very vague in explaining how he spent money. It was not an insignificant amount that he went through given what he was earning. He does not dispute he received bonuses and simply states that his bonuses were applied to his financial responsibilities, not disclosing what those were at any time. He has provided no explanation for the “financial responsibilities” he described other than he spent a lot of money on drugs and the mortgages. He was doing some renovations at 875 Second Line at one point but that was not detailed and certainly not $221,000 worth (and certainly not for the benefit of the deceased). Further, any renovations started were left unfinished causing the home to be sold in an unfinished state.

86The respondent does not deny his knowledge that the deceased’s two real properties were at one time, fully paid off. Between 875 Second Line and 500 Wallace Terrace he borrowed significant funds over a period of 6 years continuously, during which time, for the most part, he was employed full-time with a good job, earning good money. The deceased lived there and also had an income stream to apply to the home until the last quarter of 2019.

87The respondent by his own admission has been addicted to pain medication following a back injury from about age 45-47 to age 59. He is 62 years old now. He did not deny that his hospitalizations were for drug overdoses. He states that he is not a “junkie”. No one, especially the applicant, was categorizing him as same, but the fact of the matter is that with all the money that he spent and the time frame of his struggles, it is clear that he has serious substance abuse issues and has, for a long period of time. He spent lots of money on drugs.

88In one of his affidavits filed, the respondent states that he repaid the 500 Wallace Terrace mortgage from his own finances except for the few payments that he did not pay that were taken from the deceased’s account. I noted from the evidentiary record that the respondent did not pay the payments of the mortgage in the beginning. In his affidavit of June 28, 2023, the respondent contradictorily sets out: that the deceased advised her bank to take the payments for the $125,000 he borrowed leveraging 500 Wallace Terrace out of her account. His explanation was that he had a special relationship with his parents/mother, that he took care of them for years. The applicant challenges this statement and believes the respondent simply took advantage of their aging mother. She acknowledges that their parents were good to them financially and they were lucky, but there was never anything they did to the extent of the actions that the respondent took or claimed the deceased approved of and/or agreed to. The mortgage funds were a loan to be repaid by him.

89The applicant became aware of the respondent’s drug use in February of 2018. What she knew was that he was taking more than he was supposed to with respect to his pain medication but had no idea the extent of his addiction until 2020 when he was hospitalized. I have no difficulty accepting this as true and the respondent himself has been very vague about his substance abuse issues in this case. The applicant further states that she wishes the respondent well and recovery but does not believe he is being truthful about being sober for the time he submitted based on his hospital admissions. He was hospitalized for 4 months, and she paid some of his expenses during this time. I agree with the applicant on this basis and the evidentiary record.

90As to later failures to pay, after 2020, I find that they were solely because he was angry at the applicant. The 875 Second Line debts were paid off when it was sold that year. He retired in 2023 with a full pension income and was living with a friend. At the time of the hearing dates, the respondent did not have a residence. He did not have a vehicle. He did not have any major expenses that he told the court of beyond the 500 Wallace Terrace mortgage.

91At the hearing the respondent acknowledged that no matter what the court decided with his claims, any offset to him would still result in him owing a substantial amount of money regarding the 500 Wallace Terrace mortgage. This is important because he stopped paying altogether despite this. He did not present as being in financial circumstances that makes him unable to make payments on the 500 Wallace Terrace mortgage. He presented as choosing not to do so out of anger.

92The respondent from time to time attempted to explain his actions by relying on history of assistance of both parties by their parents. The respondent states: that “the Applicant was assisted financially many times by their parents and him after she moved from Sault Ste. Marie. After she and her husband purchased their home in Toronto, he and their father insulated, drywalled, built and installed new cupboards, fixed the floors on the main floor, etc., at their expense. After the applicant and her husband separated, we continued to assist her financially.”.

93The applicant does not deny that the parties’ parents assisted the parties from time to time during their lifetimes but does not accept that after working so hard to pay off two homes and be debt free, that her parents and/or the deceased would ever have agreed to either gift or lend money to the respondent or even her to the extent of what happened. The applicant further points out that she never took advantage of their parents, gave away, stole, or sold their things.

94The applicant replied with various examples of the help that the respondent received as well as his former girlfriend with respect to finances and/or properties in her affidavit. I believe her. The respondent lived rent-free with the parties’ parents for many years. He did not pay for food. The deceased for many years cooked for him, made his work lunches, paid his phone bill, and laundered his clothing and bedding.

95The applicant’s position aligns with the evidence, namely, their parents may have been good to their children but never placed themselves in the position the respondent placed the assets in. The evidence of the parents’ hard work is substantiated by the history. They did not go into debt to help their children. The first $125,000 was categorized as a loan, which the respondent acknowledges he was to repay, not a gift or compensation of any kind for taking care of the deceased or due to any “special relationship”.

96All of the examples the respondent gave to demonstrate how their parents helped the applicant fell, by far, below the amounts that the respondent received the benefit of when he was living at 875 Second Line and when his mother was aging and clearly in a declining state of health. Some examples the respondent gave included giving the applicant $2-3,000 a year; giving labour to renovations to her home in Toronto and paying materials worth $6,000 to $8,000; and one time that the applicant was given $11,000. Again, it is important to note that there was no debt and the homes in question were fully paid off at this death, again which supports the applicant’s submissions. The respondent went into examples specifically to suggest that “there has got to be a reason why my mom put the mortgage on 500 Wallace Terrace.” There is no proven comparison, in my view, of help to the applicant that aligns to the funds the respondent helped himself to.

97The respondent has not established a special relationship to the exclusion of the applicant. The applicant took care of the deceased when she needed treatment for cancer. The applicant helped with health care needs from Toronto when she could. The deceased gave the applicant her gold necklace during her lifetime. The deceased let the applicant know that the respondent was getting 875 Second Line after she passed because the respondent lived with them and helped out. The point is that the deceased shared this information openly with the applicant. There is no evidence of any animosity of any kind between the deceased and the applicant or any other plans for different treatment because of “special relationship”.

98The respondent claimed the state of the mortgage was the applicant’s fault. “She started this”.

99Based on my review of the evidence, the applicant attempted to mitigate damages as best as she could and is not responsible for the state of the mortgage. She tried by seeking other mortgage financing, which was denied. She took steps through the court to access funds. At one point, the respondent referred to the applicant’s financial difficulties with another property in response to her situation which has nothing to do with this case in my view. Had the respondent continued to pay the mortgage, it would not have gone into default, and the applicant would not be in the position she is in. It is also not unreasonable to state that had the respondent continued to make the mortgage payments and met his duties as an attorney that this property would not have fallen into the condition it fell to.

More Borrowing: Mortgage of 875 Second Line

100The respondent claims that the deceased consented to mortgaging 875 Second Line and had independent legal advice. He filed documents to support his position. The law firm file was not filed. The file of the lawyer who purported to have given the independent legal advice was not filed. The independent legal advice certificate filed purports that same was provided by a Daniel Shunock. His affidavit of execution simply states that the deceased was mentally competent “to the best of his knowledge”. This was November 29, 2019. I have already set out in this decision what the nursing home and medical records present was happening with the deceased’s health on or about this time frame. I will not repeat same. The fall/winter of 2019, the deceased’s state was at a concerning decline. The respondent is not recorded as bringing any of these issues to the attention of the lawyers involved. All of the foregoing, accordingly, is concerning on the whole of the evidence.

101After the deceased was placed in care and, around and after her decline, the respondent continued to take out successive mortgages and remortgage the property reaching the maximum allowable limit, using the POAP, for his own benefit.

102The respondent filed only one set of documents related to mortgaging of 875 Second Line West representing a time frame before the deceased went into the nursing home permanently but undoubtedly during a period of declining health.

[103] The applicant was unaware of all the mortgaging. I believe her. Moreover, the respondent does not state that she was. The applicant was able to produce a list: a. January 5, 2020, for $107,500 (the one the deceased had independent legal advice on but coincides with a time frame and in face of the respondent’s own statements that the deceased was diagnosed in “early 2020” with dementia); b. March 31, 2020, for $29,734.31; c. August 16, 2020, remortgage for $176,250; d. June 12, 2021, remortgage for $ 221,000 (it appears that part of this remortgage was to pay the Corporation of the City of Sault Ste. Marie the sum of $30.945.13); e. Second Mortgage involving George Koprash in 2021, for $37,714.16.

104Legal fees and costs were also paid every time he mortgaged/remortgaged from the borrowed funds.

105There is no question in my mind that all of these said mortgages were taken out during a time frame during when the respondent knew or ought to have known that caution was required and/or that the deceased lacked capacity. I have stated these findings and basis already herein and will not repeat all of them. It is very obvious from the medical records filed that in March of 2020 the respondent’s then lawyer made requests of the deceased’s treating providers for confirmation of capacity so that the respondent could refinance what was being described as “his” residence that he “shared with the deceased”. It is clear that the doctor indicated at this time that the deceased had vascular dementia now with delirium and low functional status.

106At the end of the day, the respondent received the exclusive use of 875 Second Line West for years prior to the deceased death and received significant mortgage funds that he used for his own benefit.

107The respondent jeopardized the retention of 875 Second Line. The respondent had a good job (during which from time to time he received significant bonuses), and a vehicle. He states it had to be sold because of “his financial obligations”.

Sale of 875 Second Line and Mortgage of 500 Wallace Terrace

108A sale document was filed confirming 875 Second Line was sold for $394,900. All was signed by the respondent. It was sold in an unfinished state. Photographs were filed showing its uncomplete state (the respondent was doing renovations for himself) and also demonstrating certain areas of the home in an unkempt state. A first mortgage of $238,631.66, a second mortgage of $37,714.16, and taxes of $3,362.79 were paid from the proceeds along with costs of the sale including legal fees of $3,824.45 and commission of $$22,0235. Net proceeds of $79,394.71 were placed in trust.

109All of the debt paid on the sale was debt of the respondent or created by the respondent for himself, not the deceased, save and except the said property taxes (which he should have been paying as the deceased’s attorney under the POAP.) He had the sole use and enjoyment of this home after the deceased was placed in care until it was sold (essentially 2019 to 2022).

110875 Second Line in 2018 was free and clear of any encumbrance. The only debts associated with this property were the upkeep and maintenance, namely utilities, heat, insurance, and taxes. The applicant described the home as a beautiful four-bedroom high rise brick bungalow.

111There is nothing indicating the deceased was capable of understanding what the respondent was doing regarding the sale, or how this and the multiple refinancings placed on same post 2019, were in any way in her best interests or for her benefit. Again, it was clear around this time that the deceased was struggling cognitively by the medical records filed from the last quarter of 2019 forward.

112The evidence in my view is undisputed that the respondent suffered and often struggled with substance abuse, which included overdoses and hospitalization. It is clear the respondent struggled financially. In 2014, he borrowed money leveraging 500 Wallace Terrace which mortgage payments and property he later failed to pay and/or maintain. He mortgaged 875 Second Line for his personal financial debts and needs/wants. There were several mortgages taken out on 875 Second Line from January 2020 to an unknown date in 2021, in significant amounts, not used for the benefit of the deceased. Photographs of several unopened registered letters sent to the respondent by mortgage companies were filed regarding 875 Second Line.

113The respondent’s explanations, like with 500 Wallace Terrace, included that he had periods of unemployment. However, they were not long periods of unemployment or long periods of when he was without funds. He retired in January of 2023. My findings regarding 500 Wallace Terrace apply to this explanation.

114The applicant had emailed the respondent to advise him that she and the deceased were upset with the sale of 875 Second Line. She also reiterated to the respondent, the lawyer’s position that although they were legal title owners, that the properties were being held in trust for the deceased. She even tried to negotiate buying the house herself and the respondent “sold it out from under” the applicant and the deceased for less than what the applicant was prepared to pay for it. She offered $400,000 privately.

115I believe the applicant that she did not know about the actual sale and found out when the respondent was hospitalized for drug overdose. It is clear from the documents filed that the closing for this sale was scheduled when the respondent was hospitalized and equally clear that the applicant was being asked by the law office to assist with ensuring that the transaction closed. The applicant filed an email that confirms that it was in fact the lawyer on the sale that recommended that the applicant file for a “committeeship” for the respondent to close the real estate transaction and was pressing upon her that it was extremely urgent. The applicant even cleared out the house. She did not interfere in any way. She helped. She also paid for some of the respondent’s hospital expenses during this time despite the way the respondent was treating her.

116The respondent confirms in his affidavit, “I was hospitalized at Sault Area Hospital in Sault Ste. Marie, Ontario on February 18, 2022, for a total of four months. I was in the Intensive Care Unit on a ventilator and in an induced coma for approximately five weeks. The real estate transaction could not be completed until after I regained consciousness and was deemed competent to execute the documents.”.

Neglect of/Mismanagement of 500 Wallace Terrace Before and After the Deceased’s Death

General

117The applicant alleges that during the respondent’s reign as attorney under the POAP he neglected 500 Wallace Terrance. He failed to pay the appropriate bills regarding the home and neglected the maintenance of property to the point that it fell into a state of serious disrepair. He failed to rent it out and/or had unaccounted renters paying cash, which she believes he kept for himself. He also failed to make payments on the mortgage.

118The respondent gave a number of explanations for what he did or did not do and/or what happened to 500 Wallace Terrace before the applicant took it over.

119The respondent’s failures to cooperate and/or pay debts and/or maintain 500 Wallace Terrace caused many issues.

Mortgage

120The evidentiary record establishes that the mortgage on 500 Wallace Terrace was not paid regularly. Email correspondence was filed, namely a chain conversation (commending January 12, 2023, and ending on January 13, 2023) between the applicant and an RBC financial advisor regarding the said mortgage being delinquent and advising of its referral to Estate Recoveries.

121At one point in his affidavit materials filed, even though he had already acknowledged that he was responsible for the mortgage, the respondent stated that he was paying this mortgage to “assist” the applicant “because the apartments were not rented”. He made this statement in the context of expressing one of his reoccurring themes that the applicant was and should have been responsible for everything for 500 Wallace Terrace because her name was on the title - that is why he felt this property was “not his responsibility”. My findings regarding the ownership apply here and I will not repeat same. The ownership structure was an estate planning step. The applicant would not have an interest until the deceased died. I do not accept that the respondent was told or believed otherwise.

122The respondent is unquestionably responsible for the mortgage. After $40,000, was applied, the respondent still refused to pay. The mortgage was at $124,055.63 but as of the date of her last filing of materials for reasons stated including payment of outstanding taxes owed, was at $105,710.48. The mortgage is now approximately $115,000. I accept that this is correct based on the calculations recently filed by the applicant. I am satisfied that the respondent is and should be held responsible for full payment of same in respect of his obligation.

Property Taxes

123Property taxes were not paid. A notice for impending tax sale was filed with respect to 500 Wallace Terrace for $8,364.32 along with registration documents. A notice of impending tax sale was filed, which indicates that tax arrears were required to be paid by October 31, 2022. The arrears were $8,613.03 as of July 31, 2023. The respondent responded by stating that it was not his responsibility.

124To the contrary he was the attorney for the deceased when same accumulated. He made sure his interests were covered first it appears (875 Second Line). Again, many of the respondent’s responses had the theme “the applicant was a registered owner”, which I reject.

125He clearly did not appreciate or care to appreciate his responsibility.

Maintenance

126Utility bills were not paid. PUC invoices were filed, that as of June 22, 2023, $2,599.97 was owed regarding 500 Wallace Terrace, and showing delinquency back to 2018, when the respondent was the deceased’s attorney.

127Building Division documents were filed regarding 500 Wallace Terrace including violations related to the exterior, yard, items on the property; including notices, charges, orders to comply, photographs, and invoices for work done to rectify some of the violations. The home in the photographs objectively presents as in a state of disrepair and neglect. The evidence filed indicates that city inquiries as to the state of 500 Wallace Terrace were sent to 875 Second Line where the respondent was residing. The respondent does not indicate that he made the applicant aware of same. Summons were sent to the deceased also at 875 Second Line.

128The garage was determined as needed to be removed, the roof repaired, and items/debris removed off the property. The applicant provided an estimate for the garage, $9,850 just for removal.

129Photographs of the interior of 500 Wallace Terrace were filed showing the home in a state of disrepair and containing debris when the respondent was responsible for same.

130One of the explanations of the respondent with respect to 500 Wallace Terrace was that he did not have time to maintain it between work and caring for the deceased. The difficulty with this submission I believe he failed to appreciate is that he admits he did not maintain the property. Additionally, he did not provide particulars as to what he did for the deceased to preclude him from taking care of 500 Wallace Terrace. His affidavit speaks to periods when he was not working in 2020 when his mother was already in care, and/or when she was at home, and/or he had help to care for the deceased. He even indicated that he hired someone to assist him at one point for 9 months. Next, it is difficult to appreciate how caring for his mother, even if this is true, would interfere with paying the expenses, or hiring assistance or reaching out to anyone, including the applicant for assistance, if it was needed. The record reflects that the applicant offered to assist more than once, and he refused to permit her. Further, this explanation was contrary to one of his other submissions on the topic, namely his held view that the care of 500 Wallace Terrace ought to have been the responsibility of the applicant based on the title. The respondent presented as grasping for any excuse to distance himself.

131An appraisal completed by a qualified appraiser dated July 12, 2023, for 500 Wallace Terrace was filed, valuing the property due to its condition at that date at $175,000. If the garage was salvageable the agent indicated that the property could be sold for up to $190,000 in the condition it was in.

132Documents pertaining to attempts at financing by the applicant to mitigate all issues with respect to 500 Wallace Terrace were filed, indicating no approval, due to the condition of the property and value.

133I reject the respondent’s claims that this home was always in a state of disrepair even back to when their father was alive. The applicant states that prior to the respondent taking over, the property was properly maintained. Even if I accepted the respondent’s evidence as true, and I do not, given the documents filed, this argument does not help him. He was the attorney under the POAP. Instead of taking care of this property and its needs, he was more focussed on borrowing funds leveraging the deceased’s properties for his personal debts/needs.

134The respondent also submits that the applicant caused its current state, she has taken down doors and half-finished jobs including the bathroom. This to me only supports that the applicant has demonstrated that she has made and continues to make attempts to mitigate without success. Further, same establishes that she has not been “just letting it sit”, she has been doing what she can within her means.

135The respondent in reply, also submitted that one unit was almost completed in respect of damages. Again, this is based on work the applicant the applicant did and had to fund. His affidavit speaks to the flooring “she put in”.

Mismanagement of or Stolen Rent

136The applicant believes that 500 Wallace Terrace was rented out surreptitiously or not at all at times by the respondent. She believes when it was rented, he took the rent money and used it for his own needs. The respondent denies this. The respondent claims the apartments were vacant for years with the exception of squatters he claims he removed.

137The applicant however filed various photographs of letters sent to 500 Wallace Terrace in the names of other people. The applicant was also able to find some rental receipts for 2018 signed by the respondent to two different individuals, $800 per month for one of the apartments.

138Further, the applicant was able to get documents from PUC showing that electricity had been used at 500 Wallace Terrace until mid-2020, the date she locked up the house to preserve it.

139As for squatters, the applicant recognizes there was a few months in the spring of 2018 that this occurred but at no other time.

140The applicant states she had to lock up 500 Wallace Terrace in 2020 because it was unfit to live in. Windows were broken out. The home was a total disaster. Windows had to be boarded up because the respondent did nothing.

141The applicant states that she repeatedly asked the respondent to transfer the mortgage so she could finance the property herself and/or renovate it to a livable standard. The respondent refused. The respondent states that the mortgage was the deceased’s decision and not his. He presented as not caring about the ramifications or appreciating that the applicant was trying to save the property and/or its value.

142The respondent focused on blaming the applicant. He repeatedly stated very simplistically that the situation was “all her fault”. I strongly disagree. He chose not to meet his obligations to punish his sister for what he viewed in his mind as her refusing to return personal property/contents to him from 875 Second Line and for refusing to agree that he should receive a portion of the remaining proceeds from the sale of 875 Second Line to pay down the mortgage. The applicant described these conversations as feeling like “extortion”. The personal property/contents he was looking for return of, was being offered for return, many times. Those items, the applicant states would not be worth more than $10,000. The respondent made bald statements to suggest otherwise with no documentation to support same.

Missing Contents

143The applicant stated that many things were missing and went missing over the years before their mother even passed away from the properties. The applicant believes that the respondent sold the deceased’s jewellery. She outlined the pieces that had “vanished”. The parties’ father had a shop on the property of 875 Second Line with many expensive machines and tools. The applicant stated that she would question the respondent on same to which he would respond that he had no knowledge and/or did not know where the items went.

144Again, the respondent other than bald allegations had no evidence to suggest that the applicant had any or some of the missing items or took items that he suggested she did. The applicant was forthcoming as to what was there and what she had and what she took. She filed detailed materials setting all of that out.

145The respondent in his affidavit acknowledges “pawning and selling tools” before the deceased’s death but claims that any such tools were his. In another affidavit, he states that most of his father’s tools were stolen in a break and enter of the garage at 500 Wallace Terrace. Nothing was filed as to what he did about the break and enter, or what if any insurance claim was submitted with respect to same. He was the attorney. The evidentiary record supports that there were insurance policies in place for 500 Wallace Terrace until 2018 when the applicant discovered same was cancelled in 2018 for nonpayment and reinstated. The applicant also produced a text message from an individual confirming that the respondent had sold some of their father’s tools to him and what he paid for them, and provided information about another individual he believed the respondent sold items to. This individual that sent the text, wrote he paid the respondent $4,500 for two items. This individual was also expressing interest in some of the other things their father had, if the applicant still had them. While I did not hear from this individual directly, the respondent did not object to this evidence or explain it away.

Damages

General

146Calculating damages is an art and not really a science. The applicant has provided some documentation to give the court an idea of some of the damages and how she calculates them. This is a case in my view that calls out for a damage award and establishes that the applicant’s interest as beneficiary of 500 Wallace Terrace has compromised by the actions of the respondent for 7 years. The state of and value of 500 Wallace Terrace is in part caused by the actions of the respondent.

500 Wallace Terrace Mortgage

147The mortgage pursuant to supporting documentation filed, as of January 26, 2024, was $105,710.48. The mortgage is now $115,000 as a result of non-payment of the mortgage by the respondent and resulting maintenance issues/renovations being done.

148Pursuant to an endorsement of Varpio J. March 10, 2023, I acknowledge that $40,000 was ordered paid out of the 875 Second Line sale proceeds to pay down the mortgage. Since then, the applicant states that the mortgage is back up to $115,000 because the respondent was not paying, and this was the only way to keep maintaining the mortgage and the home while waiting for this case to be decided. I am satisfied that this is true. There is, however, a distinction between repair and renovations respectfully which I will discuss in more detail below as it overlaps with other damage claims made. The $40,000 formed part of a residual asset of the estate. The respondent would potentially have been entitled to $20,000 of those funds by the residual devise in the Will. Accordingly, his credit at first blush would be $20,000. However, he by my decision will be found to owe damages to the estate due to his actions as attorney. It is more appropriate in my view, in the circumstances of this case that on equity principles, this amount would be applied to same in calculation of same. The other $20,000 of the $40,000 shall be considered and classified as inheritance to the applicant of a residual asset.

149Accordingly, based on the above, requiring the respondent to be responsible for $115,000 on the mortgage is justified. Any amount of that related to renovations as opposed to repair will be considered in the assessment of damage caused to 500 Wallace Terrace dealt with below.

500 Wallace Terrace Decline in Value/Lost Rent

150The applicant seeks $125,000 for compensation for: depreciation of value of property and rent taken/lost rent due to the property not being livable.

151The applicant states that when 500 Wallace Terrace was mortgaged to help the respondent the value was assessed at $185,000, and that “all real estate went up in value while the Wallace Terrace property went down significantly”.

152There is no question that the property was a rental property and was being rented out at some points for a good amount of rental income and this stopped and/or was concealed. The applicant had to lock the property in 2020 because of its condition. The considerations and findings under the title Mismanagement of or Stolen Rent apply here, and I will not repeat them.

153An appraisal completed by a qualified appraiser dated July 12, 2023, for 500 Wallace Terrace was filed, valuing the property due to its condition at that date at $175,000. If the garage was salvageable the agent indicated that the property could be sold for up to $190,000. The comparables used for 500 Wallace Terrace per the appraisal filed are valued at $210,000 - 250,000; a significant difference of $35,000 to $75,000 if 500 Wallace Terrace was in better condition. The average of these differences is $55,000.

154I accept that the applicant did what she could to attempt to mitigate losses within her means. Given everything that the respondent did, I do not find that mitigation ought to include requiring the applicant to sell the property, although she could have done that. She was to receive same per the Will and the respondent failed to pay the mortgage which interfered with her ability to secure financing. She could renovate and get much more.

155I do recognize the that quote filed related to the damage claim includes complete replacement of certain aspects of the home. They are tantamount to significant improvements as opposed to repair or to put the home in the condition it was in when the respondent became the attorney. I am not satisfied that the respondent’s responsibilities would have included “renovating” the property to better than it was. Allowance should be made for same in the assessment of damages.

156For example, some of the renovations represent upgrades of items that were likely older to begin with, such as kitchen cabinets and countertops which is beyond maintenance responsibilities as an attorney for property. Winmar does not indicate that all proposed work itemized is for the purpose of repair. The document presents as a complete overhaul of everything. The applicant is entitled to damages that puts her in the place she would have been, which would not have included all of the improvements claimed.

157There are other issues as well with 500 Wallace Terrace that I am unable to directly relate to the actions of the respondent. Some examples include the following.

158The cause of the seepage in the basement was noted as unknown and for a building inspector to review.

159The appraisal notes that the power was turned off and that there is debris but that the condition of the home was considered “fair”. The appraiser noted the impact of the power being off as “unknown”.

160The documents do not indicate that the garage has to be demolished completely and presents as the realtor suggesting inquiries be made as to whether it could be repaired if it was structurally sound and/or was suggesting upgrades and renovations for purposes of getting a better price for the home, not because there was damage.

161The respondent states the garage was in a state of disrepair back from when their father was alive. He did nothing as attorney from 2014 forward about it.

162The applicant is not an expert. I received no affidavits from any persons with expertise and/or the documents did not set out the opinions the applicant provided.

163It also appears that the applicant has further encumbered the property in part to meet some of the renovation/improvement needs of the property and not just repair.

164The mortgage after application of $20,000 (1/2 of $40,000) should have been approximately $104,000 and is now approximately $115,000 (from continued failed payments). This appears to have allowed her to start some repairs/renovations, however, with her $20,000 input – her 1/2 of the $40,000.

165At the end of the day, the parties are self represented and all I can do is my best, to on balance, of the evidence and totality of the situation, assess this issue on what is filed and do so fairly.

166In my view, it is not fair, not to account for all of the foregoing and I have considered same against the $234,400.00 claim calculation the applicant set out in her recent affidavit materials filed.

167There is no question however that the respondent’s responsibility would however have included ensuring that damage did not occur and/or was be addressed, in his capacity as attorney under the Power of Attorney. He received substantial benefit of the value of the properties without meeting these obligations. There came a point where the 500 Wallace Terrace could not be rented out because of its condition.

168Based on the foregoing, it is fair to find that the applicant in my view has established a decline in the property’s value as a result of the failure of the respondent to properly manage the property. Based on the foregoing, I would set same at $55,000.

169As for rent (and damage), I recognize that there were some issues with squatters at one point, and the reality that the home may not have been rented regularly over the entire period of time and some allowance should be made for same in any assessment.

170There would also be rental expenses to deduct like insurance, taxes, regular maintenance, advertising, legal fees potentially etc. for 7 years.

171Next, “lost” rental income would go to the estate to which the applicant would have only been entitled to one half based on the Will, as residue of the estate had it been properly collected and/or applied and/or rented out.

172I also have considered the likelihood that some of the rent money may have gone to the capital upkeep of the property, like a roof had the respondent taken care of the asset.

173One half of the net value of 7 years of rent I find therefore could have been $50,000-$60,000 dollars based on the figures provided by the applicant.

174On the basis of the above, I set the net “lost rent” amount at $40,000 (meaning the applicant’s one half).

175The total of the decline in value and lost rent amount to $95,000. The $20,000 share of the respondent of the $40,000 used to pay down the mortgage has been considered in reduction of damages.

176I have considered that by the Will, the intention was that the respondent was to be devised 875 Second Line West. However, the situation essentially amounts to that he himself depleted his own inheritance foolishly and to the detriment of the estate. Accordingly, in my view, these damages should be viewed in terms of what happened to 500 Wallace Terrace as 100 % affecting the applicant as beneficiary with respect to entitlement of damages payable to the estate and the respondent should be disinherited from same based on his actions and the fact that he is the cause of the damages.

Division of the Estate Intended by the Will

177Part III of the Will states:

III. TRANSFER TO ESTATE TRUSTEE I give all my property to my Estate Trustee upon the following trusts:

1. Personal Property I direct my Estate Trustee to deliver the articles of personal and household use or ornament in accordance with my memorandum which I may leave in regard to the disposition and division of all particles of personal and household use or ornament. Any articles not distributed in accordance with any memorandum shall fall into and form part of the residue of my estate.

2. Debts and Taxes My Estate Trustee shall pay out of the capital of my estate all my just debts, including any income taxes payable for the year(s) prior to my death and in the year of my death to the date of my death, funeral and testamentary expenses, and all succession duties and estate, gift, inheritance and death taxes, whether imposed pursuant to the law of this or any other jurisdiction, otherwise payable by any beneficiary under my Will or any codicil or of any settlement made by me, by any beneficiary named by me in any insurance policy, plan or contract owned by me, or by any done of any gift made by me.

Analysis: the intention communicated clearly is that all of the deceased’s just debts are to be paid out of the capital of her estate. The respondent agreed that all the debts the applicant was seeking to be paid and raised in this case were incurred prior to the deceased’s death save and except her claim related to storage fees, and her claim for damages arising from the respondent’s actions, in respect of 500 Wallace Terrace both before and after the deceased’s death. The applicant has established there are unpaid debts in the amounts claimed.

3. Conversion of my Assets My Estate Trustee shall call in the assets of my estate and may sell the assets at such times, for such price, in such manner and upon such terms as my Estate Trustee, in the exercise of an absolute discretion, considers appropriate. I authorize my Estate Trustee to hold any asset of my estate without liability for loss or depreciation for as long as my Estate Trustee, in the exercise of an absolute discretion, considers appropriate, whether or not it may not be an investment in which a trustee may by law invest trust funds.

Analysis: The respondent did not establish that it was appropriate for him to hold out on release of the proceeds from the sale of 875 Second Line and/or deal with payment of debts and/or deal with 500 Wallace Terrace in the manner he did post death of the deceased. My assessment of all of his explanations were that the real reason for his lack of cooperation was related to his personal feelings concerning what he believed the applicant to be doing, namely not returning his personal items that he had at 875 Second Line and he felt the proceeds from the sale of 875 Second Line, or a portion thereof belonged to him (which I note was held in the face of knowing the extent of the unpaid debts and his refusal to pay the mortgage for 500 Wallace Terrace that he acknowledges he was responsible for). He blames the applicant. He states that “she started it by not returning his things” as the reason why he should not be penalized.

4. Property If my son, Nenad Tomas, shall survive me for thirty (30) clear days, my Estate Trustee shall transfer the property municipally known as 875 Second Line West, Sault Ste. Marie, Ontario, provided I am the owner of said property at my death, to him for his own use absolutely. If my said son, Nenad Tomas, is not then living at the date of my death, the property shall fall into the residue of my estate.

Analysis: The way this is set out in the Will, this is a specific devise of real property, however, the asset was disposed of prior to the deceased’s death by the respondent. The respondent held his titled interest in that property in trust for the deceased. His name was on that property as part of estate planning and for no other reason. It was placed in his name around the time frame estate planning was occurring and the consideration for the transfer was $2. The applicant deposed the transfers were for estate planning purposes. She was also advised of this by the lawyer. The remaining proceeds from the sale as such on closing were those of the deceased and on her death, residue of the estate.

If my daughter, Lidija Tomas, shall survive me for thirty (30) clear days, my Estate Trustee shall transfer the property municipally known as 500 Wallace Terrace, Sault Ste. Marie, Ontario provided I am the owner of said property at my death, to her for her own use absolutely. Should my said daughter, Lidija Tomas, predecease me, but leave issue then living, the share of the residue shall be divided among her issue in equal shares per stirpes.

Analysis: The way this is set out in the Will, this is a specific devise of real property. The house was not disposed of prior to the deceased’s death and could have been completed on her death. The home in this case is to go to the applicant pursuant to this specific devise. The estate is not insolvent.

5. Residue If my son and daughter, Nenad Tomas, and Lidija Tomas, shall survive me for thirty (30) clear days, my Estate Trustee shall divide the residue of my estate equally between them.

Analysis: Other than what may have been in a memorandum that I was not referred to as existing, and other than the said specific devises, everything else qualifies as residue to be divided equally. Other than the money that the respondent claims that the applicant took regarding the deceased’s pension from the bank account, neither party referred to there being any other property of significance to be divided beyond the remaining proceeds of the sale of 875 Second Line. Debts of the estate are payable from the residue. The residue at the time, accordingly was the $79, 394.71, the net proceeds from the sale of 875 Second Line that was being held in trust. The residue would also include damages to the estate and other estate debts (like costs and compensation for estate trustees).

Powers/obligations of the Estate Trustees

178In Part IV, the will states:

V. POWERS OF ESTATE TRUSTEE In order to carry out the trusts of my Will, I give my Estate Trustee the following powers to be used in the exercise of an absolute discretion at any time:

1. Investments My Estate Trustee shall invest the moneys of my estate, from time to time, in any kind of property, as my Estate Trustee, in the exercise of an absolute discretion, considers advisable. My Estate Trustee shall not be limited to investments in which trustees are by statute authorized to invest trust funds. My Estate Trustee may engage any person or trust company that my Estate Trustee considers appropriate as investment counsel, broker or agent, and delegate to such counsel, broker, or agent the management of part or all of my estate as my Estate Trustee deems advisable from time to time on a discretionary account basis. My Estate Trustee, in the exercise of an absolute discretion, shall pay to such counsel, broker or agent any fees or charges so incurred out of my estate, charged to income or to capital or to both as my Estate Trustee may determine. Any such fees or charges shall not be applied to reduce the compensation awarded to my Estate Trustee. When making investments, my Estate Trustee shall not be subject to the criteria in planning for, or the requirements for diversifying the investment of, the trust property which are prescribed by the law for trustees but may make and retain such investments as my Estate Trustee, in the exercise of an absolute discretion, considers appropriate from time to time.

Analysis: This is not a case where investments were made. The proceeds from the sale of 875 Second Line were simply being held in trust due to disagreement on payout of same.

2. Selling and Disposing My Estate Trustee shall realize or dispose of the assets of my estate, subject to the trust of my Will, in any manner and on any terms.

Analysis: The respondent did not cooperate in respect of dealing with 500 Wallace Terrace. He refused to pay the mortgage payments and/or place the applicant in a position to receive the home as devised by the Will despite her best efforts to deal with this asset, to either keep it or sell it after renovating it.

3. Retention of Assets My Estate Trustee shall hold any of my assets in the form in which he or she may be at the time of my death for any length of time, whether or not they might not be assets in which trustees would otherwise be entitled to invest trust moneys. Those assets so retained shall be deemed to be authorized investments.

Analysis: No property was being held with the intention of same being an authorized investment pursuant to this clause. The respondent just stopped cooperating because he was angry with his sister.

The Deceased’s Necklace

179I believe the applicant when she states that she received her mother’s necklace as a gift from her when she was alive, years before her passing and that her mother wanted her to have it. The applicant indicated that it was placed in the safety deposit box years ago. She has not gone in years and that is the only item in the box. She has all records to establish same. In one of the respondent’s affidavits, he acknowledges that the deceased gave the necklace to the applicant.

Unpaid Debts

[180] The applicant provided updated amounts owing on the unpaid debts which I accept, namely: a. Property taxes for 500 Wallace Terrace in the amount of $1,221.67; b. Enbridge related to 875 Second Line West in the amount of $1,863.12; c. Reliance in the amount of $7,062.68; d. Extendicare in the amount of $5,337.12; e. CareRX in the amount of $839.34; f. Sofie’s dental in the amount of $578.57; and g. Laidlaw Paciocco in the amount of $1,435.10; and h. Vaultra Self Storage in the amount of $5,706.46.

181Approximately $39,394.71 should be remaining in trust held by Ms. Opala’s law firm relating to the sale of 875 Second Line West. The debts of the estate take priority per the Will, as these are proceeds that belong to the estate.

182I am satisfied that there are unpaid invoices that are estate debts that must be paid from estate assets, and they have been proven. The money held in trust from the sale of 875 Second Line is a residual estate asset from which debts are to be paid. The respondent was not a true owner of one half of this property. He was holding same in trust for the deceased. The ownership interest was part of an estate plan put together per my findings in this decision.

$25,000 Loan

183The respondent filed a Scotiabank account statement showing that on January 13, 2020, he purchased a draft for $25,000. On the same day, the funds were deposited in a joint account owned by the deceased and the applicant. He claims it was a loan to the applicant.

184The applicant denies that she was loaned money by the respondent. She states that she received this amount due to a benefit the respondent was receiving from leveraging estate assets at the time that she knew of.

185The applicant described the receipt of the $25,000 from the respondent as a mutually agreed arrangement to account for the benefits he was receiving with the mortgage. She did not interpret this as a loan nor was it ever called that.

186While the respondent has established that $25,000 was given to the applicant, I believe the applicant. Moreover, the evidentiary record presents as very clear that the respondent used his parents’ savings and property as his own to an extent the applicant will never be able to recoup, and to require the applicant to pay the respondent or be given a credit for this amount even if it was in fact a loan would be unjust to the applicant and/or the deceased’s estate. I believe the applicant that provision of these funds was intended to be an advance on the estate to the applicant based on what he was doing at the time. Of note, there are no loan documents of any kind or any document, not even correspondence. There are no requests for repayment or categorizing same as a loan until the applicant started this litigation. Looking back now, the applicant knowing what she knows now, sees the manipulation that took place of both herself, and the deceased of circumstances for his own personal use and gain. Additionally, I have considered the other estate assets/property sold/pawned by the respondent and personal expenditures that the applicant will likely never recover her share of.

Respondent’s Belongings

187The applicant states that she has made several efforts to arrange for the respondent to collect his belongings. She wants very much for him to collect them. She either received no response or statements from him that he had not place to store same. The items are in storage. She provided details of the number of times she has made efforts to get the respondent retrieve his items.

188There is an invoice that needs to be paid with respect to same. The applicant is seeking that the respondent pay 70%. That is a valid debt incurred and owed to the estate.

189Moreover, prior to the final hearing date, I dealt with this issue many times with the respondent and every time I was presented with some excuse or suggestion that the applicant refused. I do not believe the respondent.

190The fees for the storage are not cheap. I do not accept, for a moment, with as little money as there is in this estate, that the applicant was refusing and willing to incur more debt for the storage. The respondent did not present as credible on this issue at all. I highly suspect he did not pick up his things because he has no residence and is living with a friend.

191There was only one occasion the applicant had to cancel a scheduled pick up due to illness. There were many more opportunities before and thereafter that the respondent failed to avail himself of. In January of 2024, the applicant stayed in Sault Ste. Marie a full week and the respondent did not attempt to collect one single item.

192The applicant filed emails back to February 13, 2023, addressing that she has asked the respondent many times to pick up his belongings before this date and filed many emails after that date.

193The applicant deposed of a rat/mice infestation at 875 Second Line which led to disposal of certain items to the dump. She provided photographs of the significant disarray of 875 Second Line West.

194The applicant is still prepared to make all of the remaining items that could be saved available for pick up that are in storage.

Making the Applicant beneficiary of Respondent’s Life Insurance

195The respondent is already retired. There is no evidence as to what if any life insurance he has. However, this is an appropriate case to consider the request of the applicant given the circumstances of this case and the default payment history of the respondent. If the respondent does not have a policy, then the applicant can determine if she wishes to seek to obtain one and it would be fair and reasonable in the circumstances of this case the order the respondent to comply with same. At the hearing, the respondent did not make any submissions regarding this request.

Removal of the Respondent as Executor of the Deceased Estate

196The Trustee Act, R.S.O. 1990, c. T.23 gives the court jurisdiction to remove trustees for actions or inactions including misconduct; inability to act with impartiality due to hostility between the trustee and the beneficiaries such that continued administration of the trust is impossible or improbable; inability or unwillingness to carry out the terms of the trust; personally benefitting from the trust; acting to the detriment of the beneficiaries; or any other ground that shows the trustee is not fit to control another’s property: St Joseph’s Health Centre v. Dzwiekowski, at paras. 25-30, and Rose v. Rose (2006), 81 O.R. (3d) 349 (S.C.), at paras. 70-76.

197Based on the actions of the respondent and the facts of this case, and my findings as set out in this decision, I am satisfied that the respondent ought to be removed as an executor of the deceased estate. The respondent has demonstrated an unwillingness to carry out the terms and has acted to the detriment of the applicant. His actions as attorney and attitude in my view render him unfit to have any further control over the estate.

$3,167.37 Removed by Applicant from Deceased’s RBC Account

198This money belongs to the estate and will be applied to debts of the estate per the Will, which I arbitrarily select as the income taxes owed given that the amount is virtually the same. The documents filed show that same was withdrawn from the deceased’s account on September 29, 2022.

Costs and Compensation

199The applicant has been the successful party in this litigation overall. She is seeking costs. She outlined costs in the amount of $2,883.67. This amount in my view is below the amount an unsuccessful party would be expected to pay for an application of this nature and the steps taken in the proceeding to conclusion of the hearing. There were times when the applicant was assisted by counsel. Given the contest, the materials required to be filed, the fact that the issue was important (the respondent not paying the mortgage and proceeds of trust being held up), the case being complex meaning a number of issues which were intertwined that had to be addressed, and the appearances required for this case, I am of the view that the request for an award of costs is appropriate.

200In addition, the applicant has been and will continue to be administering the estate to which she is entitled to compensation pursuant to Part VIII of the Will. The applicant provided facts as to what was done to date and what has been paid and with what. The respondent is not entitled to compensation in my view on the basis of limited involvement in administering the estate and his actions as attorney and estate trustee as I have outlined in this decision.

201It is appropriate in this case to award those costs directly to the applicant. There will be further steps that will result in costs to tend to, namely completing transfer of the specific devise of 500 Wallace Terrace to the applicant and enforcing judgment.

202I am of the view that the combined amount of $10,000 ($2,500 compensation and $7,500 costs) is a reasonable amount based on this case and the estate duties outlined above.

Conclusion

203This is a very sad case of depletion of the deceased’s assets by the respondent.

204There is only so much money left, which is residue of the estate, and estate debts to be paid, to complete intended gifts in priority.

205While the estate is not insolvent on these facts and debts can be paid with this residue, as sole estate trustee the applicant will have authority to negotiate and settle the estate debts with the creditors and she would be in a position to negotiate a lesser amount with each on the basis of limited funds available to the estate if such creditors are willing to negotiate same. That will be up to her. None of the creditors were parties to this proceeding and the court may not alter what amount they ought to be paid or give them lesser priority.

206It is the hope that the respondent does not, but he may continue to fail to pay the mortgage or meet his obligations herein, and the mortgagor will have their rights to obtain relief that the court cannot alter and has no authority to alter on this application. The court does have authority however to order damages and as stated above, will do so, in the event of any failures on the part of the respondent to meet his obligations the court orders on this application.

207Based on all the above, I order the following.

Orders

1. The respondent is removed as estate trustee/executor of the estate of Marija Tomas, deceased.

2. The applicant shall be the sole estate trustee/executor of the said deceased’s estate.

3. On the basis that the applicant agreed that she held estate money in the approximate amount of $3,167.37, she shall use same in her capacity as estate trustee to pay the income taxes of the deceased in the amount of $3,166.94 or such lesser amount that Canada Revenue Agency will accept in full satisfaction of the debt(s).

4. The remaining proceeds from the sale of the property municipally known as 875 Second Line West, Sault Ste. Marie, Ontario held in trust shall be paid out to the applicant in her capacity as estate trustee.

5. From the said remaining proceeds known to be in the approximate amount of $39,394.71, the applicant shall pay: a. 2024 property taxes for 500 Wallace Terrace in the amount of $1,221.67; b. Enbridge related to 875 Second Line West in the amount of $1,863.12 or such lesser amount that Enbridge will accept in full satisfaction of the debt; c. Reliance in the amount of $7,062.68 or such lesser amount that Reliance will accept in full satisfaction of the debt; d. Extendicare in the amount of $5,337.12 or such lesser amount that Extendicare will accept in full satisfaction of the debt; e. CareRX in the amount of $839.34 or such lesser amount that CareRX will accept in full satisfaction of the debt; f. Sofie’s Dental in the amount of $578.57 or such lesser amount that Sofie’s Dental will accept in full satisfaction of the debt; g. Laidlaw Paciocco in the amount of $1,435.10 or such lesser amount that Laidlaw Paciocco will accept in full satisfaction of the debt; h. Vaultra Self Storage in the amount of $3,994.52 (70% of $5,706.46) or such lesser amount that Vaultra Self Storage will accept in full satisfaction of the debt; i. Any other debts of the estate that may have arisen in such amounts as will be accepted in full satisfaction thereof; j. Costs and compensation payable to the applicant on account of this application and administration of this estate in the amount of $10,000 inclusive of legal fees, taxes, and disbursements as set out herein this order in paragraph 14; k. The remaining balance may be used to pay out to the applicant to put towards any outstanding mortgage default on 500 Wallace Terrace. l. The remaining balance shall be applied to damages to the estate ordered herein.

6. The applicant shall keep detailed records of all payments made, an accounting of payout of the said remaining proceeds.

7. The property municipally known as 500 Wallace Terrace, Sault Ste. Marie, Ontario, shall be transferred to the sole name of the applicant. The applicant as the sole remaining trustee of the estate has authority to complete the transfer.

8. The respondent shall immediately take steps to obtain financing to remove the current mortgage to the extent of $115,000 from property municipally known as 500 Wallace Terrace, Sault Ste. Marie, Ontario within 30 days of today’s date. If he is unable to do so, the applicant shall be entitled to a damage award against the respondent in the full amount and to that end, in the event of this occurrence, this court orders damages payable to the applicant in the amount of $115,000.

9. If the respondent has life insurance, the applicant shall be named immediately as irrevocable beneficiary of the policy to the extent of $115,000, the quantum of which designation can be adjusted yearly, namely the amount of which the applicant will be irrevocable beneficiary of, in accordance with proof of balance from the institution as to the outstanding mortgage. This shall be the insurer’s good and sufficient authority to put this designation in place and provide proof to the applicant within 30 days of completion of the designation and once yearly thereafter as requested by the applicant.

10. If the respondent does not have insurance with payout of proceeds with a face value to the extent of $115,000 or at all, the applicant if she so chooses, at her own cost, may obtain an insurance policy on the respondent’s life on the same said quantum terms set out in the above paragraph, and the respondent shall cooperate with any requirements to permit the applicant to obtain same.

11. The respondent is hereby ordered to pay damages to the estate related to damages to 500 Wallace Terrace from his failure to meet his duties and obligations as attorney under power of attorney for property of the deceased for the benefit of the interest of the applicant beneficiary, the intended beneficiary of 500 Wallace Terrace, in the amount of $95,000. The respondent is hereby disinherited to any entitlement with respect to this residual asset.

12. The respondent shall have 30 days from today’s date to obtain his belongings that are in storage and/or still in the home. If he fails to do so, the applicant may dispose of same as she sees fit. She may sell same and apply same to collection of the damages set out herein this order in paragraph 11. She will keep a complete accounting of what is sold and what is disposed of in this instance.

13. Subject to conditions set out in this subparagraph, the applicant will make a duplicate copy of the family photographs and provide same to the respondent. She will obtain an estimate of cost to do this. The respondent shall provide to the applicant in advance of making the copies, one hundred percent of the estimated cost to make the duplicate copy within 15 days of being provided with the estimate. If he fails to do so, then the applicant is relieved of making the said duplicate copy as required herein.

14. I order costs and compensation payable by the respondent to the applicant on account of this application and the administration of the deceased estate in the amount of $10,000 inclusive of legal fees, taxes, and disbursements.

Rasaiah J.