Court File and Parties

COURT FILE NO.: CV-22-109 DATE: 2024/10/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Martin Troy, Colleen Troy and Valerie Troy, the Applicants -and- Anastasia Helen Troy, Dorothy Belland, John Belland, Anastasia Belland-Rees and The Public Guardian and Trustee, the Respondents

BEFORE: Justice A. Doyle

COUNSEL: Dave Morin-Pelletier and Yasmine Atif, counsel for the Applicants Nima Hojjati, Bryan Gilmartin, counsel for the Respondents Desiree Smith, counsel for the Public Guardian and Trustee

HEARD: October 1, 2024 in Brockville

REASONS FOR DECISION

Doyle, J.

Overview

[1] This case deals with the capacity of Anastasia Helen Troy (“Ann”) at the time she signed her will and powers of attorney (“POAs”) in August 2022. The applicants challenge these testamentary documents on the grounds of incapacity and undue influence, seek a declaration that Ann is currently incapable, seek appointment as guardians of Ann’s person and property, and request accounting and other directions. The respondents are currently Ann’s attorneys for property and personal care.

[2] The respondents move to dismiss the application.

[3] The applicants bring a motion for directions.

Background

The Parties

[4] Ann, now 85 years old, was married to Thomas Guy Troy (“Thomas”) in 1978. Thomas had three children (the applicants in this matter) when he entered the marriage with Ann: Martin Troy (“Martin”), Colleen Troy (“Colleen”), and Valerie Troy (“Valerie”). Ann has treated the applicants as her own children for the past 46 years. Thomas died in 2019 and Ann received the entire estate including their family residence at 6 Jones Court in Maitland, Ontario (the “Maitland property”).

[5] In September 2022, Ann was diagnosed with Alzheimer’s disease. Ann now resides at the Cataraqui Heights Retirement Residence (“the residence”) in Kingston, Ontario where she receives 24/7 care.

[6] The respondent, Dorothy Belland (“Dorothy”), is Ann’s sister. The other respondents, John Belland (“John”) and Anastasia Belland-Rees (“Anastasia”), are Ann’s current husband and daughter, respectively. Dorothy and John are currently the attorneys of Ann’s property and personal care pursuant to Powers of Attorney executed by Ann in August 2022, at which time she also executed a will bequeathing ¼ of the residue of the estate to Dorothy and each of the three stepchildren (Martin, Colleen, and Valerie).

POAs and Will

[7] In June 2015, Ann and Thomas signed “mirror wills” at a law firm located at 257 King Street West in Prescott, Ontario (the “Prescott office”). That is, in the event of Thomas’ demise, the estate would be bequeathed to Ann and if she predeceased him, the estate would be divided as follows: 30 percent to Valerie, 30 percent to Martin and 40 percent to Colleen. Ann’s will provided the same but reverse, that is in the event of her death, her estate would be bequeathed to her husband and if he predeceased her, the estate would be divided amongst the children in the same manner as her husband’s will. The mirror wills provided that the Maitland property would be bequeathed to Colleen.

[8] Ann and Thomas executed codicils in December 2018 at the Prescott office which changed their wills to indicate that the residue of the estate would be divided equally amongst the three stepchildren. The Maitland property bequest remained unchanged.

[9] In April 2021, Ann executed a Power of Attorney appointing the applicants jointly as her attorneys for property and Dorothy as her attorney for personal care (the “2021 POAs”).

[10] On August 11, 2022, Ann executed POAs and a will which are the subject of these proceedings (the “2022 POAs” and “2022 will”).

[11] The lawyer who executed the 2022 POAs and will, Douglas Grenkie, had in hand a letter from Ann’s doctor, Dr. Adam Steacie dated July 15, 2022, which stated that: “I have examined Ann Troy today. I believe she is competent to designate her power of attorney for personal care and for property.”

[12] The 2022 POAs revoked the 2021 POAs and appointed Dorothy and John as Ann’s attorneys for both property and personal care. Ann and John’s daughter Anastasia was named as the alternate attorney for personal care. The applicant Valerie was named as the alternate attorney for property.

[13] The 2022 will revoked the 2015 will and 2018 codicil. It also appointed Dorothy and Valerie as co-estate trustees and named John as the alternate estate trustee. The 2022 will provided that the residue of the estate would be divided equally amongst Dorothy and the three applicants. The Maitland property bequest remained unchanged. That is, Colleen would receive it.

Litigation

[14] The application requests the following:

• A declaration that the 2022 POAs and will are null and void;
• Access to Ann;
• A declaration that Ann is incapable of managing her property and incapable of personal care;
• An order approving the proposed management plans;
• An order appointing the applicants as guardians; and
• An order appointing the applicants as litigation guardians.

[15] In addition, the application includes a request of directions, including:

• An order dispensing with any claim of solicitor-client privilege;
• Leave to examine the solicitor who prepared the August 2022 POAs and will;
• Medical and financial information regarding Ann;
• An order that funds from Ann’s investments not be used for legal fees for the respondents;
• Passing of accounts; and
• A certificate of pending litigation on the Maitland Property (Ann’s previous residence).

[16] The court notes that Ann’s sister, Linda, was not served with this application.

[17] The application was commenced under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) and was initially brought on an urgent basis as the applicants alleged that the respondents were limiting their access to Ann.

[18] Ultimately, the urgent motion was heard on March 28, 2023, at which time the court granted a consent order which provided that:

• Section 3 counsel would be appointed for Ann;
• There would be contact between the applicants and Ann;
• Preservation of the Maitland property;
• Leave for the applicants to request directions from the court; and
• The balance of the issues would be adjourned and returnable on 3 weeks’ notice.

[19] In May 2023, s. 3 counsel from the Public Guardian and Trustee (“PGT”) was appointed.

[20] In June 2023, counsel for the applicants requested that Ann undergo a capacity assessment and proposed the name of an assessor.

[21] At the case conference heard on December 11, 2023, the court’s endorsement provided the following:

• A hearing would take place for the motions before the court;
• Time limits were set for arguments;
• An expectation that the parties would agree on the issue of the quantum of costs;
• The order of March 28, 2023 would remain in full force and effect;
• The Office of the PGT could bring a motion for the appointment of a litigation guardian for Ann, if necessary. If not, then Ms. Smith, who represented the PGT as s. 3 counsel, could provide submissions at the hearing; and
• Factums were limited to 10 pages.

Motion to dismiss application

Respondents’ Position

[22] The respondents argue the following:

• There is no jurisdiction for this court to set aside a will until the testator has passed away;
• The applicants have not met the minimum evidentiary basis to challenge the 2022 POAs as the lawyer Douglas Grenkie, K.C., relied on Dr. Steacie’s letter that Ann had capacity and there is no evidence to the contrary; and
• Declarations should not be granted as there is no practicality in setting aside the 2022 POAs, because if that occurred, the 2021 POA for personal care would be re-instated where the respondents were named as attorneys.

[23] The attorneys have acted properly as attorneys. They have taken care of Ann’s needs and she has stabilized while in the care of the residence. Financially, they hired a third-party trust company Concentra Trust, a federally regulated trust company with Equitable Bank to professionally help manage Ann’s property. Her assets have been invested and managed by Concentra since January 2023, and they have increased in value to $6,750,000 from an original investment of $6,500,000.

Applicants’ Position

[24] The applicants submit that Ann lacked capacity when executing the 2022 POAs.

[25] There are suspicious circumstances that existed at the time the 2022 POAs and will were executed that call into question Ann’s capacity.

[26] The applicants allege that the respondents, despite knowing that Ann had an upcoming memory test and had a declining capacity, arranged for Ann to sign the testamentary documents. The respondents cut off the applicants’ contact to Ann for ten days just before the signing of the documents.

[27] Consequently, this application was commenced on an urgent basis to obtain an order so that they could have contact with Ann.

[28] Given the suspicious circumstances at the time of the signing of the will and POA, the applicants question whether Ann’s free will was overborne by coercion and/or fraud. The applicants also allege undue influence.

[29] The applicants’ plan is that Ann reside in her home in the Maitland property and Colleen and her husband will care for Ann.

[30] The applicants request orders limiting the respondents’ discussions with Ann as the respondents disparage the applicants.

[31] The respondents themselves recognized the need for this litigation and point to Dorothy’s affidavit sworn March 21, 2023, at para. 84, where she sets out the next steps in this litigation including:

• Appointment of s. 3 counsel;
• Motions for disclosure of medical, financial, and solicitor records;
• A motion to strike the will challenge;
• Cross-examination of Mr. Grenkie, Dr. Steacie, and the parties; and
• The hearing of the application.

Public Guardian and Trustee’s Position

[32] The PGT is a statutory party to all guardianship proceedings in Ontario pursuant to s. 69(8) of the SDA.

[33] The PGT recommends the appointment of s. 3 counsel where the incapable person is unrepresented, and it is necessary or helpful for that person’s views, preferences, and wishes to be provided directly before the court and provide her with a voice in the proceeding.

[34] Section 3 counsel attempts to determine the client’s instructions and wishes and acts on those instructions, not in the client’s best interests. Counsel does not act as a litigation guardian or as amicus to make decisions in the proceedings, even if it appears to be in the best interest of the client.

[35] Section 3 counsel can continue even after the client has been found to be incapable of making decisions about their property and/or personal care.

[36] In this case, s. 3 counsel confirms that she met Ann on three separate occasions. In a letter dated May 24, 2023, Ann confirmed the following:

• She wishes to maintain a good relationship with the Dorothy and her 3 stepchildren;
• She does not want anyone to deny contact to her;
• She wants to return to the Maitland property and have the applicant Colleen and her husband move in with her;
• She had an agreement with her late husband that Colleen would inherit the Maitland property if she still wanted it;
• Upon her death, her stepchildren would receive her estate and a good amount would go to her sister;
• She is still capable of managing her assets but would like Martin to help her;
• If she is not capable of managing her assets in the future, she is not comfortable with her sister managing her funds. She had not decided whom she would like to manage her assets; however, she is leaning towards Martin but would like to discuss it with him first;
• She would like someone neutral to manage her assets (such as a trust company) but would like to talk to Martin first to get his thoughts on this option; and
• She would like Martin to help and is uncomfortable for Dorothy handling her funds.

[37] With respect to the directions regarding limiting the respondents’ discussions with her, Ann did not know what that was about and why it was being asked.

[38] With respect to an accounting of her funds, she stated that the respondents should account to her.

[39] Regarding the medical documents, she did not say she was opposed but questioned why she would want to give them her records. She wishes to see the medical documents before deciding whether she will release them.

[40] She does not oppose the other relief being sought and she had no instructions regarding the application.

Discussion

A Declaration that the August 2022 Will is Null and Void

[41] The challenge to the 2022 will should not occur while the testator is still alive.

[42] This issue was thoroughly discussed by the Court of Appeal for Ontario in Palichuk v. Palichuk, 2023 ONCA 116, 84 E.T.R. (4th) 199.

[43] First, r. 14.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”) does not refer to a will of a living person. It provides that:

14.05(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.

[44] In addition, s. 22 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 states that a will speaks from death:

22 Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to,

(a) the property of the testator; and

(b) the right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator under subsection 20 (2).

[45] In Palichuk, the Court of Appeal for Ontario discussed the rationale for this principle. It referred to the leading case of Duke of Marlborough v. Lord Godlophin (1750), Ves. Sen. 61, 28 E.R. 41 (H.C. of Ch.):

In the case of Duke of Marlborough v. Lord Godlophin (1750), Ves. Sen. 61, 28 E.R. 41 (H.C. of Ch.), Lord Hardwicke L.C. remarked that the testamentary document of a living person is nothing more than a piece of waste paper, at p. 50: “…[T]he law says, that a testamentary act is only inchoate during the life of the testator, from whose death only it receives perfection: being till then ambulatory and mutable, vesting nothing, like a piece of waste paper.” This decision has been cited in other cases for the proposition that a will only speaks from the moment of death: see Y.P. v. M.L.S., 2006 MBCA 32, 205 Man R (2d) 20, at para. 19; S.A. (Trustee of) v. M.S., 2005 ABQB 549, 18 E.T.R. (3d) 1 at para. 28.

[46] The Court of Appeal concluded that it was not good public policy to permit litigation over wills that may change prior to the death of the testator or that the asset to be bequeathed disappears or the beneficiary predeceases the testator. It discussed some Superior Court of Justice cases that decided otherwise:

[47] There are a couple of Superior Court of Justice decisions that involve a review of the validity of a trust or will during the grantor or testator’s lifetime. See, e.g. Brandon v. Brandon, [2001] O.J. No. 2986, which was upheld by this court in brief reasons, see Brandon v. Brandon, [2003] O.J. No. 4593, and Rubner v. Bistricer, 2018 ONSC 1934, 36 E.T.R. (4th) 79. Neither case involved a direct challenge to the trust or to the will. Instead, the question of the validity of these instruments was incidental to another dispute. The Brandon case was primarily an action to enforce a mortgage, with a counterclaim to discharge the mortgage and declare an inter vivos trust invalid due to undue influence. In Rubner, the validity of a will was directly relevant to the current management of property by joint attorneys for property for the incapable person.

[48] Another Superior Court of Justice decision, Dempster v. Dempster, cites Brandon in suggesting at para. 9 that the law in Ontario “may well be moving towards” permitting claims of undue influence where a testator remains alive. Given the incidental nature of the validity issue in Brandon, I disagree with this portent. I also disagree with the suggestion that Cullity J.’s comment at para. 28 of Stern v. Stern, (2003) 49 E.T.R. (2d) 129 (Ont. S.C), is intended to open the door to challenge with wills during the testator’s life:

The court should not, I think, close its eyes to the fact that litigation among expectant heirs is no longer deferred as a matter of course until the death of an incapable person. While, in law, the beneficiaries under a will, or an intestacy, of an elderly incapable person obtain no interest in that person's property until his, or her, death, the reality is that very often their expectant interests can only be defeated by the disappearance, or dissipation, of such property before the death.

I read this quote consistently with the two cases discussed above: litigation among expectant heirs may occur before death when a present dispute comes before the court. Practically, there will be some cases in which the validity of a will, trust or transfer incidentally comes into play. This does not mean that it is either necessary or desirable for the law to permit direct challenges to these instruments during the grantor or testator’s life.

[49] To the contrary, there are strong public policy reasons not to permit a challenge to a will prior to the death of a testator. A testator may change their will as often as they like. It is entirely unknown how much, if any, money or property there will be left to dispute until the testator dies. It cannot be known if any of the beneficiaries will have predeceased the testator. Thus, the common law insists upon the death of the testator before litigation. Otherwise, the courts would be inundated with litigation that is hypothetical during the lifetime of the testator, with the potential for re-litigation after their death.

[50] There is a difference between the capacity to sign POAs and the capacity to sign a will.

[51] Dr. Steacie’s letter only refers to “competent to designate her power of attorney for personal care and for property”.

[52] Her capacity regarding the will can be left to another day.

[53] The will challenge in the application is dismissed.

A Declaration that the August 2022 POAs are Null and Void

Introduction

[54] It is premature to dismiss this claim. As elaborated in more detail below, there are unanswered questions regarding Ann’s capacity at the time the 2022 POAs were executed.

[55] At the time the 2022 POAs and will were executed, both the applicants and respondents were trying to arrange for Ann to meet with different lawyers for her to execute the POAs and will.

[56] With respect to capacity, her family doctor, her accountant, and her family were concerned that Ann was having issues managing her financial affairs and having memory issues.

[57] There were concerns expressed from those around Ann that she was experiencing cognitive decline.

[58] In June 2022, Ann’s doctor Dr. Steacie set up a memory test for Ann for later in August 2022.

[59] In addition, there is some evidence that could engage the doctrine of undue influence.

[60] As stated by the Supreme Court in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, the court is reluctant not to enforce gifts that are a result of coercion or “fraudulently induced generosity”.

[61] As Dietrich J. wrote in Stewart v. Zawadzinski, 2023 ONSC 387, 87 E.T.R. (4th) 99, at para. 47:

Unsoundness of mind or a weakened mental state will be a factor in determining the degree of influence sufficient to have documents set aside: MacKenzie Estate, Re, [1945] 1 D.L.R. 388 (Ont. C.A.) aff'd , [1946] 4 D.L.R. 225 (S.C.C.), at para. 22; Banton v. Banton, [1988] 164 D.L.R. (4th) 176 (Ont. Gen. Div.), at paras. 63 and 65.

[62] In this case, there was potential for Dorothy to influence Ann as a result of her relationship of trust or confidence to Ann as her sister. This influence has not been explored but certainly, the evidence discloses that Dorothy cancelled the meetings Martin made for Ann to meet with a lawyer, Ms. Tuck in Brockville. In addition, Dorothy blocked contact between the applicants and Ann at a critical time when the POAs at issue were being executed.

[63] Capacity with respect to POA for property is set out in the SDA:

8 (1) A person is capable of giving a continuing power of attorney if he or she,

(a) knows what kind of property he or she has and its approximate value;

(b) is aware of obligations owed to his or her dependants;

(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) knows that the attorney must account for his or her dealings with the person’s property;

(e) knows that he or she may, if capable, revoke the continuing power of attorney;

(f) appreciates that unless the attorney manages the property prudently its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given to him or her.

(2) A person is capable of revoking a continuing power of attorney if he or she is capable of giving one.

9 (1) A continuing power of attorney is valid if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property.

(2) The continuing power of attorney remains valid even if, after executing it, the grantor becomes incapable of giving a continuing power of attorney.

[64] Regarding the capacity to grant a power of attorney of personal care, the SDA provides:

47 (1) A person is capable of giving a power of attorney for personal care if the person,

(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and

(b) appreciates that the person may need to have the proposed attorney make decisions for the person.

(2) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care.

(3) A person is capable of revoking a power of attorney for personal care if he or she is capable of giving one.

(4) Instructions contained in a power of attorney for personal care with respect to a decision the attorney is authorized to make are valid if, at the time the power of attorney was executed, the grantor had the capacity to make the decision.

Minimum Evidentiary Threshold

[65] The respondents submit that the applicants have failed to meet the minimum evidentiary threshold.

[66] In Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 88, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 207, the Court of Appeal for Ontario held that an applicant must meet some minimal evidentiary threshold before a court will consider a request that a testamentary instrument be proved.

[67] In Bitaxis Estate v. Bitaxis 2023 ONCA 66, at para. 4, the court stated:

To meet the evidentiary threshold, the person seeking to challenge a will must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded: Neuberger, at para. 89.

At para 89, the court stated:

[A]n applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved.

[68] Bare allegations and mere suspicions are not enough to meet the minimal evidentiary threshold. There must be an air of reality to the allegations: see McBeath v. Wright, 2021 ONSC 4494, 70 E.T.R. (4th) 270, at paras. 14-15.

[69] In Seepa v. Seepa, 2017 ONSC 5368, Myers J. cited the principles from Neuberger and the policy concerns underlying them and, at para. 35, explained how the minimum evidentiary threshold should be applied:

At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subject to a requirement to put a best foot forward on the merits. Normally, a litigant must just plead facts that support a cause of action to become entitled to use the full panoply of fact-finding tools provided by the Rules. In estate cases, more is required. Some evidentiary basis to proceed is required in order to address the specific policy concerns that are discussed above.

[70] A recent case questions the applicability of the minimum evidentiary threshold to POA matters. In McCormick v. McCormick, 2021 ONSC 5177, Wilcox J. reviewed Newberger, Seepa, and the provisions of the SDA. He found that Rule 75 of the Rules, giving rise to the minimum evidentiary threshold in contentious estates proceedings, and the related forms, only apply to the estate of deceased persons.

[71] He referred to two cases that applied this threshold in POA matters but was not persuaded that the minimum evidentiary threshold applied to such matters:

[16] In Abrams v. Abrams, filed by Tara, the court dealt with a motion in writing for directions with respect to a dispute regarding powers of attorney. There is no mention of SDA subsections 39(3) or 68(3). The court stated that it accepted the submissions that “the purpose of Rule 75.06 is to design a procedural regime that will suit the nature of the dispute…”. There is no analysis nor explanation of how a matter involving powers of attorney, not wills, fell under Rule 75.06. The court went on to make an order giving directions.

[17] In Botelho v. Faulkner, also filed by Tara, the court dealt with motions within applications under the SDA. They were not brought under subsections 39(3) or 68(3). Both parties relied on the Neuberger and Seepa cases. Fowler Byrne J. wrote that “Rule 75.06 governs all contentious estates proceedings”, and applied the minimum evidentiary threshold test. Again, there is no indication of how the decision was made that such estate proceedings included matters under the SDA and not just the estates of deceased persons. Consequently, I am not persuaded that it is appropriate to deal with this matter under Rule 75 or to apply the minimum evidentiary threshold test.

[72] This court agrees with Wilcox J. and his conclusions above. Nevertheless, like Wilcox J., this court will engage in the limited weighing of the parties’ evidence in accordance with Neuberger.

[73] The court finds that the applicants have met the minimum evidentiary threshold to justify the fact-finding powers by way of directions that they are requesting.

[74] The minimum evidentiary threshold is not a very high bar as it is a preliminary assessment before all information is exchanged.

[75] In Rudin-Brown et al. v. Brown, 2021 ONSC 3366, 155 O.R. (3d) 750, at para. 91, H. J. Williams J. set out the five factors for the court’s consideration regarding “suspicious circumstances” in the making of wills, which also apply to powers of attorney:

(i) The extent of physical and mental impairment of the testator around the time the will was signed;

(ii) Whether the will in question constitutes a significant change from the former will;

(iii) Whether the will in question generally seems to make testamentary sense [which for powers of attorney can be seen to ask whether the power of attorney in question makes sense regarding the person’s best interests];

(iv) The factual circumstances surrounding the execution of the will; and

(v) Whether any beneficiary was instrumental in the preparation of the will (which for powers of attorney can be seen to ask whether the attorney was instrumental in the preparation of the powers of attorney).

[76] The applicants have provided evidence that calls into question the validity of the 2022 POAs.

[77] Given the interests of Ann, who may have been in a vulnerable state at the time of the 2022 POAs signing, it is in the interests of justice not to terminate this process prematurely.

[78] The court notes the following evidence calls into question Ann’s capacity at the time of the execution of the 2022 POAs.

[79] This includes the factual circumstances, Ann’s state, and the conduct of those around her during the signing of the 2022 POAs is as follows.

[80] Martin stated that Ann’s accountant, Michael McMahon from MNP LLP wanted Ann to meet with a lawyer that they had selected, Trea Tuck, for purpose of signing the POAs. The accountant was concerned about Ann’s ability to manage her financial affairs and her cognitive ability.

[81] Martin states that on June 2, 2022, he spoke to Ms. Tuck’s assistant who informed him of the existence of the 2021 POAs. Before this conversation, he was not aware of the 2021 POAs.

[82] Martin was told by the assistant that Ms. Tuck would not be willing to make any changes without a doctor’s letter attesting Ann’s capacity to do so.

[83] Ms. Tuck never met with Ann, spoke with Ann, or assessed Ann’s capacity or spoke to Martin directly.

[84] In an email dated June 6, 2022, from Dr. Adam Steacie to Martin, Dr. Steacie states that “I have discussed with Ann on many occasions moving to avoid social isolation which has been a particular issue. . .. She will need more assistance as the time goes by. She is to be seen in our ‘memory clinic’ which will help quantitate the extent of her impairment, but I agree that on the face of it she is not capable to understand and manage finances and property. . ..”

[85] In an email dated June 6, 2022, from Martin to Ms. Tuck, Martin sent a copy of Dr. Steacie’s email and requested a copy of Ann’s POAs.

[86] In an email dated June 24, 2022, from Mr. McMahon to Martin, Mr. McMahon states: “I ask this question since, based on my most recent meeting with Ann, I am concerned as to her ability to properly manage her financial affairs.”

[87] In an email dated July 29, 2022, from Ann to Laurie Forrester, Mr. Grenkie’s assistant, Ann provided instructions regarding the new POAs and will, and responded to draft POAs and a draft will which was sent to her that morning from Ms. Forrester.

[88] Martin does not believe that Ann sent this email and believed that Dorothy had access to Ann’s email. Martin was aware that Dorothy had sent an email from Ann’s email when Martin was present.

[89] In an email dated August 2, 2022, from Martin to Ms. Forrester, Martin stated that he spent the day with Ann the day before and discovered an email purportedly sent by her with instructions to change her POAs and will and said that “Ann is suffering from a form of dementia and has fairly severe short term memory loss. She did not write that email and has no memory of the instructions contained therein. We believe that her sister Dorothy wrote the email posing as Ann, and that Ann is being pressured and coerced by her sister and brother-in-law into making a new will and POAs.”

[90] In a letter dated August 2, 2022, from the applicants’ counsel to Mr. Grenkie, counsel stated that they had a reasonable belief that Ann did not have mental capacity to change her POAs and will and that proceedings will be commenced.

[91] On July 31, 2022, Ann informed Martin that new POAs and a new will were being prepared by a lawyer at the Prescott office.

[92] On August 2, 2022, Martin wrote to Mr. Grenkie stating that Ms. Tuck would not make any changes unless there was a letter from a doctor attesting to Ann’s competence and that any new documents would be challenged in court.

[93] The respondents indicate that Ann wished to return to the Prescott office that she was familiar with, and Ann was taken aback that Martin had not only shared personal information with Ms. Tuck, her previous lawyer, but also that Ms. Tuck would be in contact with the applicant Martin without her permission.

[94] First, both parties were attempting to arrange the execution of new POAs by Ann and were jockeying for control over Ann’s attendance at a law office.

[95] Between April 2021 and August 2022, the relationship between the parties deteriorated and numerous communications occurred regarding the execution of new POAs and a new will by Ann.

[96] The applicants were not aware that the April 2021 POAs existed. There is evidence that Ann had no memory signing these POAs.

[97] Suffice to say, the parties became distrustful of each other and jockeyed for control regarding Ann meeting with a lawyer to sign the new POAs.

[98] Both parties wished to escort Ann to the lawyer of their choice. The applicants set up meetings for Ann with Ms. Tuck. The respondents set up meetings with Mr. Grenkie.

[99] Martin tried to intervene with Mr. Grenkie’s office, challenging Ann’s capacity and threatened to go to court.

[100] The respondents cancelled the June 1 and June 2, 2022 meetings that Martin had set up with Ms. Tuck.

[101] Ann chose to return to the Prescott office where she and Thomas had been several times when they signed their 2015 wills and then codicils.

[102] Second, the respondents cut off contact between the applicants and Ann during a critical time: that is, the ten days from August 2, 2022 to August 12, 2022, when Ann was brought to Mr. Grenkie’s office to sign the 2022 POAs. Martin alleges that Ann thought she was going to a medical appointment on August 11, 2022 when she was really executing the POAs.

[103] Third, all parties were concerned about Ann’s capacity. In an email dated June 2, 2022 from Dorothy to Martin, Dorothy questioned Ann’s capacity to sign a POA.

[104] Next, there were issues regarding Ann’s overall cognitive state.

[105] Ann was having memory issues. She did not remember that she had executed POAs in April 2021. The parties were aware that she had memory issues as she had seen someone in August 2021.

[106] Memory loss is not the same as capacity but certainly indicates that those around her were worried about Ann’s state.

[107] In Colleen’s affidavit sworn October 21, 2022, she writes that she noticed a significant decline in Ann’s cognitive function since 2021. She was not retaining information and could not recall what she cooked for herself for dinner.

[108] In Valerie’s affidavit dated October 21, 2022, she states that she noticed a marked decline in her mental capacity during her visit in May 2022 compared to her previous visit in August 2021. Ann repeated herself very frequently and was unable to remember her answer or some of the specifics of the prior conversations and her sense of time was distorted. Valerie states that Dorothy came over and sent emails for Ann and operated Ann’s TV remote. In a conversation with the respondents, they discussed Ann’s diminishing memory and mental capacity, and that Dorothy does not “recognize” Ann anymore. The respondents said they no longer wanted to drive back and forth from Brockville to Maitland in the winter to assist Ann. Valerie states that Dorothy also became agitated about topics concerning Ann’s mental capacity, how Ann’s licence was likely being revoked soon, and how Ann’s late husband did not let the respondents be part of the family. Valerie recalls that the respondent John was also concerned that after his passing, Dorothy would only receive 50 percent of his pension.

[109] At the time the 2022 POAs were executed, Mr. Grenkie had in hand a letter from Ann’s doctor, Dr. Steacie, dated July 15, 2022 which stated that: “I have examined Ann Troy today. I believe she is competent to designate her power of attorney for personal care and for property.”

[110] There is no further evidence at this time as to the discussions Mr. Grenkie had with Ann and how he satisfied himself that she had capacity. Mr. Grenkie was entitled to rely on the letter from Dr. Steacie but the court has nothing further to support capacity.

[111] Next, the question remains: why did the respondents not wait until Ann completed her appointment for a Montreal Cognitive Assessment (MoCA) test results that occurred two weeks later? This test had been scheduled by Dr. Steacie in June 2022.

[112] In accordance with Neuberger, I must determine if the applicants have provided the court with some evidence that, if accepted, would call into question the validity of the 2022 POAs and whether the applicants have successfully answered any challenge that arose as a result of the applicants’ evidence.

[113] There is a presumption that Ann had capacity when she signed the 2022 POAs.

[114] The law regarding the capacity to execute a valid will applies to the capacity to execute a valid power of attorney. While there is a presumption of capacity to enter into a power of attorney, that presumption does not apply in the face of “suspicious circumstances”: Rudin-Brown, at para. 90; Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, 71 E.T.R. (3d) 55, at para. 85.

[115] The 2022 will makes a significant change to the residue of the estate as it provided ¼ of it to Dorothy which is a sizeable amount given the value of her investments. This could be explained that Ann felt grateful to her sister for assisting her. The 2022 POA for property also makes a significant change as the applicants were previously the attorneys and were replaced by the respondents in the 2022 POA for property.

[116] The respondents submit that Ann was comfortable with the Prescott office where she had previously attended with her late husband, that Mr. Grenkie was entitled to rely on the doctor’s letter, and that they blocked the applicant’s contact to Ann to avoid upsetting and confusing her.

[117] However, this response is not enough. The respondents cancelled meetings with Ms. Tuck, orchestrated so that the applicants could not speak to Ann, and if accepted, misled Ann by saying they were attending a doctor’s office when she was actually attending a lawyer’s office.

[118] The court pauses to discuss the medical evidence before the court as to Ann’s capacity at the time the 2022 POAs and will were executed.

Ann’s Health History

Introduction

[119] Ann was suffering from depression from the passing of her late husband in 2019 who she had been married to for over 40 years.

[120] There is evidence of her sister and her sister’s husband regularly visiting Ann and helping her with the house, outside work, medical appointments, and errands. The applicants visited regularly, and Colleen took a very active role in helping Ann.

[121] On August 11, 2021, Ann had a consultation with the Geriatric Outreach Consult Team of Brockville Mental Health Centre. The team noted that Ann suffered from mild cognitive impairment and memory loss and recorded a score of 13/22 on the MoCA test. The team diagnosed Ann with bereavement with an unspecified neurocognitive disorder.

[122] In an email dated June 6, 2022, Martin wrote to Ann’s doctor, Dr. Steacie regarding his concerns for Ann’s loss of memory and ongoing decline of cognitive functioning, especially regarding Dorothy’s desire for Ann to move out of her home. Dr. Steacie replied on that day that Ann was to be seen in the “memory clinic” which will quantitate the extent of her impairment but stated, “I agree that on the face of it she is not capable to understand and manage finances and property.”

[123] The events occurring after the signing of the 2022 POAs are discussed below.

[124] On September 10, 2022, Dorothy wrote to the applicants confirming that Ann met with Dr. Steacie on September 9, 2022, which was the first appointment after the MoCA test and that Ann could no longer maintain a driver’s licence test. Ann was on medication to assist with her memory loss and depression. Dr. Steacie was concerned with Ann staying in her home due to the isolation, depression, and lack of activities. He had been trying to get Ann to move out of her house for two years and wanted Ann to go to a seniors’ residence in Brockville.

[125] On September 23, 2022, Ann fell and was diagnosed with a broken clavicle and discharged with referrals. Following her discharge, she began to decline significantly and was readmitted to the hospital on September 29, 2022. On October 11, 2022, she was discharged to the Cataraqui Heights Retirement Residence where she would receive 24/7 care and supervision.

[126] In an email dated September 30, 2022, from Dorothy to the applicants, Dorothy indicated that “Ann was raged” and required 24/7 assistance. Ann went for a walk and could not be located for five hours.

[127] In an email dated September 30, 2022, from Dorothy to Valerie, Dorothy confirmed that Ann was admitted to hospital the night before, that there was a desire to have Ann transferred to a Memory Clinic – Dementia Unit until they found a permanent residence for her, and that Ann’s dementia was at a level that she could not return home. Ann’s condition had steadily declined in the past month and Dorothy stated, “I think the removal of her licence was the tipping point.”

[128] In an email dated October 13, 2022, from Dorothy to the applicants, Dorothy confirmed that Ann had settled into Cataraqui Heights Retirement Residence.

[129] Certain incidents upset Ann. On one occasion, Dorothy called Ann to see if Colleen was still there with her and told Ann that she was “entertaining someone that was taking them to court”. Dorothy also threatened to abandon Ann if she entertained Colleen.

[130] On July 6, 2023, Martin received a call from Ann saying she told the respondents she wanted to return home and Dorothy told her that she would never “get out of here”, would “never go home”, and then, she struck Ann.

[131] An investigation ensued. Counsel from Torkin Manes LLP became involved on behalf of the residence and would not release the results of the investigation until the substitute decisionmaker permitted it.

[132] When Colleen visited the residence on July 25, 2023, she was told that there would be no overnight visits and visits were to take place in the common rooms.

[133] On July 18, 2023, the PGT counsel recommended Dr. Elizabeth Moore as a local capacity assessor to do a voluntary capacity assessment. The applicants agreed. The respondents delayed in providing their position to this suggestion.

[134] On August 25, 2022, Ann attended the memory clinic and failed the administered test with a MoCA score of 10/30. The test had been scheduled by Dr. Steacie in June 2022. Consequently, Ann lost her driver’s licence.

[135] In September 2022, Ann was admitted to Brockville General hospital after a fall which caused a broken clavicle. After this fall she showed further cognitive decline with more severe symptoms of Alzheimer’s disease and outbursts of anger and inability to manager her own hygiene.

[136] She was released and then readmitted on October 11, 2022, when she was transferred to Cataraqui Heights.

[137] Ann has been prescribed anti-psychotic medication to manage her violent behaviour. The court has the benefit of a number of experts’ reports regarding Ann’s health.

Shauna MacEachern, Occupational Therapist

[138] An occupational therapist, Shauna MacEachern, met with Ann at the residence and explained that her role is to evaluate Ann’s ability to look after her activities of daily living and to provide an opinion about Ann’s level of independence and/or the level of support she requires to maintain her health and safety.

[139] Her Occupational Therapy Report (the “Report") dated May 25, 2023 stated that Ann:

• Had a history of depression since her husband passed in 2019;
• Was unable to take medication unless given to her;
• Did not remember medical appointments;
• Did not remember the Personal Support Worker or nursing support at the residence;
• Could not read remember simple instructions; and,
• Did not remember the city she lives in.

[140] Regarding safety, Ms. MacEarchern noted that Ann became confused and disoriented while in the community.

[141] She did not want to live in a long-term care home and missed her home.

[142] She did not change her clothes regularly and neglected to take to showers. She was reminded to wash herself.

[143] She expressed a number of times that she did want her sister to be her attorney for personal care, that she and her sister had a fight that morning, and that her sister was angry with her.

[144] At pp. 17-18 of the Report, Ms. MacEachern concludes that:

Ms. Troy does not have the capacity to make shelter decisions due to an inability to understand the facts of her situation and needs and an inability to appreciate her current and future care needs in a reality-based fashion.

When the totality of Ms. Troy’s current abilities and impairments are considered, it is the opinion of this assessor that Ms. Troy continues to require 24/7 supervision as was recommended by the hospital team in October 2022 and her family doctor before that.

[145] However, Ms. MacEachern notes that Ann was physically fit and can walk independently. She had some behavioural challenges but could follow through with behavioural management strategies.

[146] At pp. 18-19 pf the Report, Ms. MacEachern indicates that Ann is quite susceptible to misinformation. She is dependent on others to fill in gaps in her memory leaving her susceptible to influence and manipulation.

[147] At p. 19 of the Report, Ms. MacEachern stipulates that 24/7 is strongly recommended now and likely in the future. If at home, Ann would require two or more live in caregivers or shift nurses 24/7 to ensure complete supervision.

[148] Ann will require assistance with toilet and bathing in the future.

[149] The cost of shift nursing in a home setting is $30 per hour or $262,000 per year.

[150] In her final analysis and recommendation, Ms. MacEachern states that the medical records and collateral impairment since 2019 suggest a gradual onset of memory and cognitive impairment since 2019. This finding has relevance to the issues before this court.

[151] In conclusion, it is Ms. MacEachern’s opinion that it is in Ann’s best interest to live in supported housing to benefit from the behavioural and emotional supports as well as stability and routine.

Admission to Providence Care Hospital

[152] On September 27, 2023, Ann was admitted to Providence Care Hospital in Kingston, Ontario because of her verbal and occasional physical responsive behaviours. The discharge summary dated November 7, 2023 concludes with a diagnosis of a major neurocognitive disorder—Alzheimer’s disease. Her medications at discharge included risperidone and mirtazapine. She had delusions that her sister was putting her in the hospital in order to steal her money.

Dr. Spencer Haze, Psychiatrist

[153] In a clinical summary dated November 5, 2023, Dr. Spencer Haze, a psychiatrist, states that Ann should not have overnight visitors and that routine is important. This will minimize her confusion about her ability to return home.

[154] It was also recommended by staff that all visits take place in the common room.

Dr. Melissa Andrew, Psychiatrist

[155] On July 17, 2023, Dr. Melissa Andrew conducted a geriatric psychiatry assessment and it stated:

• Ann was assessed at Providence Care Hospital in the company of Dorothy and John, and
• Krista Wyatt, a nurse case manager, had conducted an initial home assessment on June 27, 2023.

[156] Dr. Andrew noted that Ann’s cognitive changes had been occurring for approximately two to three years. Again, this is an important consideration when dealing with Ann’s capacity in August 2022 when the 2022 POAs were executed.

[157] Ann required increased support with meal preparation, housekeeping, laundry, and medication regime in addition to relying on John to manage her finances.

[158] Dr. Andrew reported changes in short-term memory over the past year, specifically repetitive speaking and forgetting things.

[159] The September 2022 fall caused a head injury as well as a clavicular facture and her behavioural symptoms related to dementia became more prominent. The calls to her sister, which were previously four times per day, were reduced to twice per day.

[160] Mirtazapine, risperidone, and trazodone were required for agitation.

[161] MoCA score with the Ministry of Transportation in July 2022 was 15/30. Her score with Krista Watt in June 2023 was 9/30.

[162] Dr. Andrew concluded that Ann had difficulty understanding her environment, interpreting information, and weighing facts when problem-solving and making decisions.

[163] Her irritability was secondary to her dementia and her lack of short-term memory. Dr. Andrew recommended an increase of mirtazapine to 15 mg and possibly risperidone.

[164] Dr. Andrew concluded that she was incapable of making decision regarding behavioural treatments as she did not recognize the need and their potential ramifications.

Dr. Kenneth Shulman’s Capacity Assessment

[165] On November 6, 2023, a capacity assessment on Ann was conducted by Dr. Kenneth Shulman at the Cataraqui Heights Retirement Residence.

[166] Dr. Shulman is a geriatric psychiatrist and an expert in geriatric capacity assessments. His report is dated November 28, 2023.

[167] During the assessment, Ann repeated several times to Dr. Shulman that she and her late husband had agreed that her niece and her niece’s husband would move in with them after the other partner died. But she could not remember her own name.

[168] She denied any past difficulty taking care of herself or any cognitive impairment. She further indicated that she could live alone and did not need 24/7 care.

[169] She was not aware of the value of her assets.

[170] She said she trusted her sister.

[171] She again stated she wanted to go home, play golf, and socialize but could not remember her friends’ names.

[172] Her MoCA score was 9/30 as it was in July 2023.

[173] Although an English teacher, she did not know any plays by Shakespeare nor did she know the name the Prime Minister of Canada or the President of the United States.

[174] In summary, Dr. Shulman stated that Ann demonstrated evidence of moderately severe dementia, most likely of Alzheimer’s type, affecting cognitive functions including memory and executive brain functions that subsume judgment and insight.

[175] Her cognitive impairment was severe. Her dementia was such a severity that she did not understand her current circumstances and her need for supervision and support.

[176] Further, it appeared that Ann was well cared in the retirement residence and has stabilized.

[177] For the above reasons, it is Dr. Shulman’s clinical opinion that she is incapable in all of the tasks and decisions. Her dementia is not reversible and will progress over time, although it appears to have stabilized. Dr. Shulman opines that it is clear from the thorough report of Ms. MacEachern that Ann is incapable of managing her personal care at almost all levels.

[178] He opined that she was incapable of managing property and personal care, granting powers of attorney, or executing a will.

Conclusion

[179] It is clear that there were concerns regarding Ann’s memory and cognitive ability when the 2022 POAs and will were executed.

[180] Dorothy herself questioned Ann’s capacity to Martin. Yet, there is a short letter from Ann’s family doctor indicating that she had capacity to provide a POA.

[181] First, under s. 2 of the SDA, Ann is presumed to have been capable of granting and revoking the 2022 POAs and the burden is on the applicants for proving that she was not capable on a balance of probabilities.

[182] Section 8 of the SDA sets out the criteria of capacity of giving a POA.

[183] There was no full medical assessment conducted at the time the 2022 POAs were executed.

[184] The court can consider the circumstances after the fact as to whether there is a minimum evidentiary basis to question Ann’s capacity at the time of the signing of the POAs.

[185] The court has considered Whitfield v. Glover, 2024 ONSC 1266, where Gilmour J. dismissed an application for a will challenge on the basis that the applicant had not met the minimum evidentiary threshold to show there were grounds to call into question the validity of the deceased’s will.

[186] In that case, the court considered the numerous witnesses and transcripts of the cross-examination of the testator’s family members, neighbours, co-workers and other friends who testified about the relationship between the testator and her live-in friend, who the court found was a caregiver and accepted was in a romantic relationship with the testator. The testator left his home to the caregiver rather than to her niece. In dismissing the application, the court found that the applicant had failed to meet the minimum evidentiary threshold of undue influence. She found that the applicant had raised some suspicions and concerns, but all had been answered by the live-in caregiver/boyfriend or those who supported his position by filing affidavits.

[187] In Johnson v. Johnson, 2022 ONCA 682, 81 E.T.R. (4th) 7, at para. 13, the court stated: Moreover, a mere diagnosis of dementia, without more, does not determine the question of capacity; to hold otherwise risks falling into impermissible stereotypes about individuals with mental health and other challenges.

[188] There is no other evidence before the court to describe how Ann functioned in her life, her ability to make decisions, her knowledge regarding her finances, and her capacity to instruct her lawyer (whether she was in his office alone without the presence of her sister and/or husband or being influenced by them).

[189] Mr. Grenkie was not Ann’s long-term lawyer but one can infer that he felt comfortable taking instructions from her at the time the 2022 POAs and will were executed. Without evidence to the contrary, it was reasonable in the circumstances of this case to infer that Mr. Grenkie would have properly carried out his duties as a solicitor and would not have permitted Ann to execute the 2022 POAs and will if he had any concern about her capacity or suspected undue influence: see Lewis v. Lewis 2019 ONCA 690, at para. 7; Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), at para. 48.

[190] The court finds that the applicants have raised suspicious circumstances that will allow this application to continue with respect to the 2022 POAs and their validity.

A Declaration

[191] The respondents argue that a Declaration was not practical in effect on setting aside the April 2021 POAs as the respondents were appointed as attorneys for personal care.

[192] In the leading case of Ontario (Attorney General) v. Restoule, 2024 SCC 27, the Supreme Court of Canada, at para. 279, stated:

A declaration is “a judicial statement confirming or denying a legal right of the applicant. Unlike most rulings, the declaratory judgment merely declares and goes no further in providing relief to the applicant than stating his rights” (L. Sarna, The Law of Declaratory Judgments (4th ed. 2016), at p. 1). Declaratory relief is discretionary. A court may award a declaration where “(a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought” (S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99, at para. 60; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81; see also Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11, and Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46). A declaration should not be issued if it is not “capable of having any practical effect in resolving the issues in the case” (Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 833).

[193] If the 2022 POA regarding personal care is set aside, then the 2021 POA continues to appoint the respondents as attorneys for personal care. But this is not the case for the 2022 POA for property.

[194] The court finds that the applicants have raised issues that need to be flushed out further regarding Ann’s capacity to sign the 2022 POAs.

[195] There remains the question of who the guardians for property will be as the 2021 POAs designate the applicants.

[196] The respondents have indicated an intention to launch a counter-application to be Ann’s guardians.

[197] Accordingly, save and except the will challenge, the court dismisses the respondents’ motion to dismiss the application.

Motion for Directions

Direction for Respondents to Refrain from Discussing These Proceedings with Ann and Not to Make Disparaging Remarks or Speak Negatively About the Applicants to Ann.

[198] It is clear that the consent order dated March 28, 2023, at para. 9, states that the parties agreed that the applicants had leave to seek directions.

[199] In support of this motion, the applicants have filed a surreptitiously obtained recording. In that recording, Dorothy is having a phone conversation with Ann in the presence of Colleen in which Dorothy is telling Ann that she should not be with Colleen who is bringing her to court.

[200] The applicants argue that there was implied consent by Ann to intercept and record the phone conversation pursuant to s. 184 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[201] Section 184 of the Criminal Code prohibits the interception of private telephone conversations without the consent of the person who initiated the conversation, or the person who was intended to receive it.

[202] However, even if the evidence was obtained in an improper or illegal manner, the evidence can still be admissible.

[203] The court nonetheless maintains a general exclusionary discretion to exclude otherwise admissible evidence if the prejudicial effect outweighs the probative value. Evidence may be excluded under this cost-benefit analysis if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time to present the evidence that is not commensurate with its value, or if it is misleading in that its effect on the trier of fact is out of proportion to its reliability as probative material: R. v. Cyr, 2012 ONCA 919, 294 C.C.C. (3d) 421, at paras. 96-97, citing R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-21.

[204] There is not enough evidence before me to make a determination of whether Ann implicitly consented to her conversation being recorded.

[205] I agree with William J’s comments in Rudin-Brown, at para. 30:

Surreptitious audio and video recordings should be strongly discouraged by the courts. This is a regular refrain in family law cases. (See, e.g. Fiorito v. Wiggins, 2015 ONCA 729 at para. 22.) Although the case before me does not involve family law, it is a case involving a family, and many of the reasons for discouraging secret recordings in family law cases apply equally here, including the distrust they foster and their toxic effect on future relationships.

[206] In this case, I have admitted the recording of the conversation and noted Ann’s upset state.

[207] The applicants submit that this recording is an example of how discussions that disparage the applicants upset Ann.

[208] The court is concerned with respect to how Ann has been placed in the middle of this family’s rift between the parties and has caused her anxiety, distress, and confusion.

[209] Ann’s sister was called “not a well person” by one of the applicants and her sister is telling Ann not to communicate with the applicant Colleen who is taking her to court.

[210] The respondents claim that the applicants are causing Ann emotional distress such that Cataraqui Heights had their solicitors, Torkin Manes LLP, write to the applicants about a previous disruption to Ann and the allegation that Colleen hit Ann, and that future visits would need to take place in the common area of the residence.

[211] At this initial stage without cross-examination, the court finds that the limited record shows that despite all parties contending they are acting in Ann’s best interests, their behavior belies this intention as manifested through the way they act towards each other, causing Ann distress.

[212] Moving forward, the court directs that the parties conduct themselves in a respectful manner in Ann’s presence and ensure that all discussions are devoid of animosity and accusations.

[213] The court is not prepared to limit the respondents’ communication regarding this litigation regarding Ann and her POAs at this time.

[214] Section 66 of the SDA imposes a burden to the guardian of a person to perform it diligently and in good faith and shall:

a. As per section 66(2), explain to the incapable person what the guardian’s powers duties are, and

b. As per section 66(5), encourage the person to participate, to the best of his or her abilities, in the guardian’s decisions on his or her behalf.

[215] Section 32 of SDA imposes the same duties with respect to guardians of property.

[216] This issue can be revisited if any of the parties’ conduct rises to the level of abuse towards Ann that will require the intervention of the court.

Directions to Provide an Accounting

[217] Sections 42(1) and (4) of the SDA provide that a court can order an account in the absence of misconduct or wrongdoing. The applicants have a genuine interest in Ann’s welfare and certainly have a “spes successionis” interest in her estate. That is, the applicants have an expectation of succeeding to an interest in Ann's estate.

[218] Section 42 of the SDA stipulates:

42 (1) The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed.

(2) An attorney, the grantor or any of the persons listed in subsection (4) may apply to pass the attorney’s accounts.

(3) A guardian of property, the incapable person or any of the persons listed in subsection (4) may apply to pass the accounts of the guardian of property.

(4) The following persons may also apply:

1. The grantor’s or incapable person’s guardian of the person or attorney for personal care.

2. A dependant of the grantor or incapable person.

3. The Public Guardian and Trustee.

4. The Children’s Lawyer.

5. A judgment creditor of the grantor or incapable person.

6. Any other person, with leave of the court.

[219] The respondents argue that the applicants have not obtained leave and that the order of March 28, 2023, did not include leave for this direction. I disagree. It is clear from the order that the applicants were granted leave to ask for directions.

[220] In Lewis v. Lewis, 2020 ONCA 56, the Court of Appeal for Ontario upheld the application judge’s finding that there was no direct allegation of misfeasance or wrongdoing and refused to grant an accounting.

[221] In Lewis, the court found that even when a party has successfully obtained leave, the court retains discretion whether to order a passing of accounts: at para. 6.

[222] The court referred to Dzelme v. Dzelme, 2018 ONCA 1018, 46 E.T.R. (4th) 43, at para. 7 and McAllister Estate v. Hudgin (2008), 42 E.T.R. (3d) 313 (Ont. S.C.), at paras. 9, 13. In Dzelme, at para. 6:

“… this court stated that factors a court considers in exercising its discretion under s. 42(1) include the extent of the attorney’s involvement in the grantor’s financial affairs and whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs to warrant an accounting:”

[223] In this case, the applicants have a genuine interest in the financial affairs. However, the applicants have not established any basis for this court to intervene as there is no direct allegation of misfeasance or wrongdoing.

[224] The estate is being properly managed by Concentra Trust. The investments have increased. The respondents have produced the investments portfolio in their supplementary record.

[225] At this point, the applicants have not established that there has been a mismanagement of Ann’s estate.

[226] I decline to exercise my discretion and order an accounting at this time.

Directions to Produce Ann’s Medical Records

[227] The court indicates that the medical records and assessments as they pertain to the period of time that Ann signed the 2022 POAs are relevant.

[228] There was some decline of cognitive function in the evidence including the Ms. MacEachern’s report, Martin’s evidence, and Dr. Steacie’s report.

[229] The court finds that these reports (at least the existing ones from 2020 to 2023) are producible, relevant, and material to the issue before the court.

[230] The court confirms that medical records are highly personal and attract a high level of privacy. I am mindful that Ann told her s. 3 counsel that she questioned why they should be requested or disclosed.

[231] In Borges v. Borges, 2018 ONSC 3451, the court ordered the disclosure of the medical report at the time that Ms. Borges signed her POA. In this case, the respondents indicate that the applicants already have Dr. Steacie’s report.

[232] However, any reports and exploration of Ann’s capacity just before the execution of the 2022 POAs will assist the court in its determination of capacity.

Direction that the Respondents Not Fund the Cost of Litigation from Ann’s Assets

[233] The court will not restrict the attorneys from funding the litigation from Ann’s assets. Ultimately, the court will determine if the costs are reasonable or whether they are responsible for the costs. These are two different issues.

[234] Rule 15.01(1) of the Rules states that a person under disability must be represented by a lawyer.

[235] The courts have long held that trustees are entitled to be indemnified for all costs, including legal costs, which they have reasonably incurred. Reasonable expenses include the costs of an action reasonably defended: see Geffen, at 390. In Re Dallaway, [1982] 3 All E.R. 118, Sir Robert Megarry V.C. stated the rule at p. 122:

In so far as such person [trustee] does not recover his costs from any other person, he is entitled to take his costs out of the fund held by him unless the court otherwise orders; and the court can otherwise order only on the ground that he has acted unreasonably, or in substance for his own benefit, rather than for the benefit of the fund.

[236] In Furtney v. Furtney, 2014 ONSC 3774, 100 E.T.R. (3d) 312, the court referred to Professor Oosterhoff and discussed the right to indemnity:

In a recent article, Professor Albert H. Oosterhoff discussed the right of an estate trustee to be indemnified by the estate in respect of expenses reasonably incurred by the estate trustee in the execution of his or her duties, including indemnity for legal fees incurred in relation to legal actions involving the estate.

[237] Professor Oosterhoff explained the nature of the right of an estate to be indemnified as follows at pages 127-128 (footnote omitted):

As the word itself suggests, the right to be indemnified implies that estate trustees should bear the costs and expenses themselves first and then seek reimbursement from the estate assets. But this presents a problem. Many trustees and estate trustees do not have the wherewithal to pay the costs out of their own pocket. Nor should they have to. Their office is a socially desirable one which at one time, at least in the case of trustees, was carried out without remuneration.

Of course, a person who has been named to the office does not have to accept it. He may renounce. Most people would probably want to renounce once apprised of the fact that they must pay for all costs and expenses personally and can recover them only afterwards. On that basis few people would agree to take on the office. That is certainly not desirable, for the administration of estates is a socially necessary and desirable function that the law should promote and foster. And so it has long been the practice and the courts have long since recognized that trustees and estate trustees may pay the costs and expenses out of estate or trust assets.

[238] As Professor Oosterhoff points out (at page 125), the courts have always held that estate trustees (and also trustees) are entitled to be indemnified for their reasonable expenses.

[239] The right to indemnity extends to legal fees. In Re Thompson Estate, [1945] S.C.R. 343, Rand J. for the majority states at page 356:

The general principle is undoubted that a trustee is entitled to indemnity for all costs and expenses properly incurred by him in the due administration of the trust: it is on that footing that the trust is accepted. These include solicitor and client costs in all proceedings in which some question or matter in the course of the administration is raised as to which the trustee has acted prudently and properly.

[240] Section 23.1 of the Trustee Act, R.S.O. 1990, c T.23, codifies the right of a trustee (and this would include an estate trustee by virtue of the definition of “trust” in s. 1 of the Act) to have expenses paid directly from trust property, or to be reimbursed from trust property:

23.1(1) A trustee who is of the opinion that an expense would be properly incurred in carrying out the trust may,

(a) pay the expense directly from the trust property; or

(b) pay the expense personally and recover a corresponding amount from the trust property.

(2) The Superior Court of Justice may afterwards disallow the payment or recovery if it is of the opinion that the expense was not properly incurred in carrying out the trust.

Conclusion

[241] The court orders the following:

1. The relief requesting a declaration that the 2022 will is null and void is dismissed;
2. The court provides the following directions: a. The respondent will provide the applicants with all of Ann’s medical report/notes from 2020 to 2023 which are in their possession. If there is a dispute, then the issue can be dealt with at a case conference. b. The parties may arrange a case conference with the trial coordinator to discuss timelines and other procedural issues, including whether Linda White, Ann’s sister, should be added as a respondent. c. The court orders the applicants to serve Ann’s sister Linda White with the application materials.
3. There has been divided success. The court is not inclined to order costs.
4. If parties still wish to pursue their costs, then this issue is reserved to the trial judge.

Date: October 28, 2024 The Honourable Justice A. Doyle