COURT FILE NO.: CV-23-00000265-0000

DATE: 2024-01-31

Amended: 2024-02-06

SUPERIOR COURT OF JUSTICE – ONTARIO

10 Louisa Street, Orangeville ON L9W 3P9

RE:

Denise Pettipas, Applicant

AND:

Eileen Bessie Pettipas and Deborah Johnston (nee Pettipas) personally and in her capacity as the Power of Attorney for Eileen Bessie Pettipas, and The Office of the Public Guardian and Trustee and Legal Services, Respondents

BEFORE:

Justice M. Kurz

COUNSEL:

Ioulia Vinogradova, for the Applicant – ioulia@hummingbirdlaw.com

Deborah Johnston (nee Pettipas), Respondent self-represented deborahj570@gmail.com

Office of the Public Guardian and Trustee, Respondent – Pgt-legal-documents@ontario.ca (not present)

HEARD:

January 8, 2024, in person

ENDORSEMENT

AMENDED: Paragraph 48 sub 2 the word ‘Denise’ is replaced with ‘Deborah’, and in paragraph 77 sub 4.iii, the word ‘Denise’ is replaced with ‘Deborah’.

Introduction

1The Applicant, Denise Pettipas (“Denise”) applies for the removal of the Respondent, Deborah Johnston (“Deborah”), as power of attorney over personal care and property for their elderly and infirm mother, Eileen Bessie Pettipas (“Eileen”). Denise further seeks the reinstatement and appointment of herself as Eileen’s power of attorney, or in the alternative, her appointment as guardian over property and person for Eileen.

2Denise and Deborah are the adult daughters of Eileen. They have one surviving sibling, David Pettipas Jr. (“David Jr.”), who attended this hearing on January 8, 2024. He fully supports Denise‘s application as do Denise and David’s adult children.

3Deborah has been Eileen’s power of attorney for about the past twenty-five months. Denise argues that over that time, in her role as Eileen’s attorney, Deborah:

1. Neglected her duties as Eileen’s attorney for both personal care and property. Denise contends that this neglect has occurred both before and after May 19, 2022, when Eileen entered a long term senior’s residence at the Shelburne Long Term Care Residence in Shelburne, Ontario (the “Shelburne Residence”).

2. Failed to provide Eileen with the personal care she required in the farmhouse that served as her former residence (the “Home”). Deborah allegedly failed in this regard even though she and her adult son, Steven Johnston (“Steven”), lived with Eileen in the Home before she entered the Shelburne Residence.

3. Allowed Eileen’s TD Bank line of credit to default to the extent that collection steps have been commenced by the bank,

4. Failed to pay Eileen’s rent at the Shelburne Residence.

5. Used Eileen’s funds for her personal benefit.

6. Defaulted on many of the terms of the disclosure order of Harris J. of January 30, 2023, requiring Deborah to produce Eileen’s financial and medical records.

7. Allowed Eileen to fall $11,920.32 or six months in arrears of her rent at the Shelburne Residence.

8. Only repaid $8,000 of those rent arrears and waited until December 29, 2023 to do so. That payment still left Eileen $3,920.32 in arrears of her rent.

9. Allowed Eileen’s phone and TV services to be disconnected at the Shelburne Residence.

10. Allowed her son, Steven and perhaps Deborah herself, to continue to reside, rent free, in the Home.

11. Refuses to allow the Home to be sold so that the proceeds could be used for Eileen’s benefit.

12. Has refused to release information about Eileen to Denise or allow her to fully communicate with staff at the Shelburne Residence. Denise contends that this refusal prevents Denise from assisting Eileen more fully.

13. Had tried to limit Denise’s contact with Eileen particularly during the pandemic.

4Deborah disagrees with her sister’s assertions. While she says that she is unable to respond to every allegation against her she states:

1. Of the three surviving siblings (of five)¹, she was always the one closest to Eileen. Her adult sons lived with Eileen and her late father, David Pettipas (David Sr.”) since childhood.

2. She too lived with Eileen and David Sr., although she does not specify the period of that cohabitation. I will have more to say about the period of Deborah’s cohabitation with Eileen below.

3. She has worked very hard to take the best care of Eileen. She placed Eileen in a senior’s residence where she has finally gained friendships, relationships with roommates and nurses. Eileen attends activities at the Shelburne Residence. Deborah asserts that Eileen shows signs of being happy and increasingly comfortable at the Shelburne Residence.

4. While she no longer lives at the Home, Steven continues to do so. Deborah claims that she and her two sons work hard to maintain the Home. She says that they do in order to “cherish” the Home in honor of both of her parents. She asserts that this is what Eileen “begged for them to do for several years”.

5. While Deborah resides in this region, Denise lives in Nova Scotia. That makes Denise unable to carry out the roles of attorney or guardian.

6. Deborah fears that if Denise is successful, she will move Eileen to Nova Scotia, keeping her away from Deborah and her sons. That would be both unfair to Eileen and contrary to her wishes.

7. Any restrictions that she placed on family members seeing Eileen were recommended by treating doctors and news media.

Adjournment Request

5At the commencement of this hearing, Deborah requested a second adjournment of this proceeding. Deborah stated that she did not have all of her materials with her at court. She added that her friend, Jessica Geraldes, a layperson who had been assisting her, was ill and unavailable to attend court. She left some of her documents at Ms. Geraldes’ home.

6Denise strongly contested the adjournment request, pointing out that Deborah had already received an adjournment on December 18, 2023. On that date, Miller J. granted the adjournment, over Denise’s strong objection, but made the return date peremptory on Deborah.

7Denise insisted on proceeding even though Deborah had only served her materials (with her disclosure) one business day before this matter was heard, preventing Denise from filing any reply materials. She was willing to rely on the materials before the court even though Deborah’s disclosure was both very late and far from complete.

8I denied the adjournment request. I found that it was necessary to proceed with the hearing of this application in light of the facts that:

1. This application had already been adjourned once following Denise’s strenuous objection. The adjournment was a peremptory one.

2. Deborah was offered access to copies of any missing documents.

3. The issues raised in this proceeding had remained unresolved for about a year and a half.

4. On January 30, 2023 Harris J. had ordered broad disclosure by Deborah of Eileen’s financial and medical records. Yet Deborah delayed over eleven months before providing any disclosure and the disclosure she did provide was partial at best, as set out below.

5. A further delay of the issues raised in this application was contrary to Eileen’s best interests. In particular, the non-payment of Eileen’s rent and certain utilities made her placement and enjoyment at Shelburne place increasingly precarious.

6. Further, it was important to determine whether Eileen’s personal care and property interests were being protected under the powers of attorney that named Deborah as attorney.

9All of that being said, I also advised the parties that I would not be hearing arguments on the contempt motion as there was insufficient time to do so. I indicated that I would adjourn the contempt portion of this application sine die (to an indefinite date).

Summary of my Decision

10For the reasons set out above, I grant this application, revoke the powers of attorney in favour of Deborah and grant Denise guardianship of Eileen for both personal care and property.

Background

11Eileen is 89 years old. She suffers from advanced arthritis, memory deficits, and declined cognition. She has no control over her lower extremities, including her bodily functions. She is incontinent.

12Eileen was married to David Sr. for 65 years. They resided together at the Home. David Sr. died on September 8, 2020. As set out above, Eileen and David Sr. had five children, only three of whom are now alive, Denise, Deborah and David Jr.

13Denise states that she and her parents had planned to return to Nova Scotia, her parents’ native province. They planned for Denise to move first. She was to make arrangements for all three of them to live together so that she could care for her parents as they aged.

14Eileen and David Sr. never returned to Nova Scotia. After Denise moved to that province in 2019, David Sr. became ill and wheelchair bound. In addition, Deborah and another sibling, Darlene (who passed away in December 2021), objected to Eileen and David Sr. selling the Home.

15Denise returned to the Home in August 2020 to assist Eileen when David Sr. became seriously ill. She was still residing in the Home when David Sr. died. Denise states that Deborah moved into the Home after David Sr. died.

16Denise’s uncontested evidence regarding Eileen’s first two powers of attorney is that:

1. In 2015, Eileen executed powers of attorney, prepared by her family’s solicitor, Wayne Ball (the “2015 Powers of Attorney”). Those powers of attorney named David Sr. as Eileen’s attorney for both personal care and property, in the event of her incapacity. Denise was named as the alternate attorney. It appears that Eileen executed a will at the same time.

2. On September 22, 2020, twelve days after David Sr. died, Eileen signed new powers of attorney for personal care and property (the “2020 Powers of Attorney”). They were also prepared by Mr. Ball. Those powers of attorney named Denise as Eileen’s attorney for both personal care and property, in the event of her incapacity. Eileen named no alternate attorney.

3. In his reporting letter of September 28, 2020, Mr. Ball, stated that he and Eileen had reviewed her existing will. He wrote that Eileen told him that she wished to make no changes to her will other than in reference to Denise’s surname. She wished to refer to Denise by the surname “Pettipas” in her will. Mr. Ball also confirmed the execution of the 2020 powers of attorney, naming Denise as Eileen’s sole attorney.

4. I have not been provided with evidence that a September 22, 2020 will of Eileen exists. Deborah does not produce a purported September 22, 2020 will, even though she is presently Eileen’s attorney for property.

17Deborah has produced a handwritten page of what she claims to be Eileen’s diary. In an entry apparently dated September 8, 2020, the author states “I lost the love of my life Sept 8 2020. I miss him terrible [sic]”. A subsequent annotation on September 22, 2020 states: “September 22, 2020 went to lawyer with Denise and changed my will. I did not want to do this”. There is no entry reference to powers of attorney in that diary.

18Denise claims that Deborah was absent from Eileen’s life for years before David Sr. became extremely ill and died. Deborah then chose to become involved with her mother. Deborah does not deny that claim.

19At some point after David Sr.’s death, Deborah moved back in to the Home; although the date of her return is not clear from the materials before me. Deborah claims that she no longer lives in the Home. However, she does not say when she moved out of the Home. Denise believes that she continues to reside there.

20Denise deposes that after moving back into the Home, Deborah became concerned with her parents’ wills and the provision of bequests to their beneficiaries. Denise claims to have heard Deborah demand that Eileen change her will to benefit Steven, failing which Eileen would never see her again. Denise also deposes that when Deborah learned that Denise was Eileen’s attorney, she stated “we’ll see about that”. Deborah has not rebutted either claim in her responding affidavit.

21Denise left the Home in October 2021. She says that she did so because of tensions with Deborah.

22On October 13, 2021, Deborah brought Eileen to see a different lawyer, Larry Haskell. Mr. Haskell prepared new powers of attorney, which Eileen signed (the “2021 Powers of Attorney”). Mr. Haskell also prepared a new will for Eileen which she presumably executed as well.

23The 2021 Powers of Attorney name Deborah rather than Denise as Eileen’s attorney for both personal care and property. The appointment is not conditional on Eileen’s incapacity and thus had immediate effect. Deborah’s son, Steven, is named as the alternate. Deborah has not produced Mr. Haskell’s reporting letter or his file. As Eileen’s power of attorney, she is entitled to obtain them.

24Deborah offers no specific response or alternative narrative to Denise’s claims about the manner in which the 2021 Powers of Attorney were executed.

Evidence of Eileen’s Incapacity Prior to Signing 2021 Powers of Attorney

25Eileen started to show increasing signs of cognitive decline after the September 8, 2020 death of David Sr. On August 11, 2021, two months before Eileen signed the 2021 Powers of Attorney, Denise contacted the Ontario Provincial Police to request a wellness check on Eileen. James Giovannetti, an officer from the Ontario Provincial Police MCRT (Mobile Crisis Response Team) attended.

26Officer Giovannetti’s report details his attendance at the Home, where Eileen was left alone as follows:

MCRT attended the subject's residence and observed that the subject was extremely confused and had extremely limited mobility. She did not know her address, the month, or her age. The subject appeared very confused and unable to make informed decisions. She advised that she was being cared for by her daughter Debbie and grand son Steven. She advised that they would be home soon but didn't know how to contact them. MCRT contacted Debbie and spoke with her to determine when someone would be home to care for the subject. Arrangements were made which satisfied MCRT that there was no immediate safety concern.

Referrals made for immediate support from CMHA's seniors at risk program as well as the LHIN.

Although it is evident that the subject is cognitively impaired and Incapable of making decisions, grounds did not exist to substantiate that the subject is being taken advantage of in a criminal manner.

[Emphasis added.]

27Officer Giovannetti also wrote that Eileen “appears to be in advanced stage dementia/Alzheimer”.

28Thirteen days later, on August 24, 2021, Sue Parker, a registered occupational therapist with CBI Home Health, completed an in-home assessment of Eileen, at Denise’s request. Although Denise attended with Ms. Parker, she was not present during the assessment.

29In her report, Ms. Parker stated that Eileen told her that she was residing with Deborah and her son (i.e. Steven). Ms. Parker noted some concerning aspects of Eileen’s care. When Ms. Parker attended, Eileen was sitting on the edge of her bed with her pants and incontinence garments not pulled up. Eileen requested Denise’s assistance to help her out of bed and to pull up her garments.

30Eileen’s mattress was so soft that there was a risk of her sliding off of it. She did not know where her medications were located. She did not recall whether she had taken them at lunch.

31Ms. Parker administered the MoCA (Montreal Cognitive Ability) test to Eileen. Ms. Parker reported that Eileen had an overall MoCA score of 10/30, which “may indicate cognitive impairment”. Her sub-scores were as follows:

1. delayed recall subtest-score of 0/5;

2. visuospacial/executive subtest-score of 2/5;

3. attention subtest-score of 3/6; and

4. orientation subtest-score of 3/6.

32Ms. Parker opined that Eileen “may not have cognitive capacity/judgment to manage safely on her own in an emergency situation”. Ms. Parker added that Eileen “appears to be left at home alone while daughter/grandson are working as neither Debbie or [sic] her son were present when OT visited.”

33Ms. Parker offered a number of recommendations, including that Eileen should have help dressing in the morning so that she would not be at risk of falling when she attempted to dress on her own. Ms. Parker also recommended that Eileen have supervision for the administration of all medication, including the drugs she was required to take at lunch. That was because Eileen “was not aware she took meds at lunch”.

34Ms. Parker is not a litigation expert but from both her profession and the contents of her report, I find that she was a participation expert, as defined by the Ontario Court of Appeal in Westerhof v Gee Estate, 2015 ONCJ 162, [2015] O.J. No. 1471 (Ont.C.A.).

Care of Eileen After Deborah’s Appointment as Attorney

35No changes appear to have been made to Eileen’s care after Ms. Parker’s report was released. Starting in October 2021, after becoming Eileen’s attorney, Deborah restricted Eileen’s contact with anyone other than herself and Steven. In doing so she cited Covid restrictions. Deborah says that those restrictions were the result of medical advice and information gleaned through the media. Denise argues that Eileen was just left alone, without care, during the months after Deborah obtained the powers of attorney.

Eileen’s Admission to the Shelburne Residence and Deborah’s Subsequent Alleged Negligence

36Denise states that her concerns remained unabated following Ms. Parker’s in-home assessment. She remained in touch with CBI Home Health and the nurses at the Lynn Nursing Home and Community Care Support who came in to check up on Eileen. However, she asserts that Deborah continued to interfere, preventing her from getting a complete picture of Eileen’s condition and care. Nonetheless, Denise believes that her communications as well as the Parker assessment she arranged led to Eileen’s placement in Shelburne Residence.

37In the Shelburne Residence’s assessment of Eileen on the day of her admission, May 19, 2022, she was found to have short and long-term memory problems and moderately impaired cognitive skills for daily decision making. She was found to be incontinent for both bowel and bladder. Her mobility required extensive assistance. Subsequent reports have demonstrated no improvement in Eileen’s condition.

38Denise attempted to obtain up-to-date information about the status of her mother but was advised by the Shelburne Residence personnel that she was not entitled to it without Deborah’s consent. Deborah had named only herself and her sons on the Shelburne Residence admission record.

39Denise asserts that even while in the Shelburne Residence, Deborah continues to neglect Eileen. In particular:

1. On August 6, 2023, Denise received a phone call from a collections agency informing her that Eileen’s TD Bank line of credit had not been paid and was in collections. The caller would not provide details of the amount. Deborah does not deny the non-payment of the line of credit balance. Despite the Harris J. disclosure order described in greater detail below, Deborah never produced a single statement from the line of credit.

2. Deborah allowed Eileen’s rent to the Shelburne Residence to fall six months in arrears. By December 27, 2023, Eileen owed $11,920.32 in unpaid rent.

3. Only on December 29, 2023, nine days after this hearing was originally scheduled to be heard and twelve days before the date to which it was adjourned, did Deborah sort out Eileen’s unpaid rent. She provided only a partial payment of $8,000, leaving arrears of $3,920.32. Deborah reached an agreement with the residence to pay those arrears at the rate of $218 per month for a period of 18 months. That payment would be added to Eileen’s regular rent of $1,986.82 per month for a total of $2,204.82 per month.

4. Deborah has not explained why Eileen’s rent was not paid on time, why the arrears were not paid in full on December 27, 2023 and why, if she were unable to pay the rent for six months in 2023, she would be able to pay the rent plus $218 per month in the coming eighteen months.

5. Deborah discontinued the payment of Eileen’s television and telephone bills, leading Rogers to disconnect those utilities. Denise stated that she originally did not know why she was unable to get hold of her mother by telephone. She arranged for the reconnection of the two utilities the day after learning of their disconnection.

6. Denise was unaware of Eileen’s unpaid rent and cancelled utilities because Deborah had refused to allow her to obtain such information from the Shelburne Residence. Denise only learned of those financial concerns when a former nurse at the Shelburne Residence, who happened to visit it, informed Denise of her mother’s plight.

Deborah’s Unsatisfactory Disclosure

40On January 30, 2023, in a related proceeding, Harris J. ordered Deborah to produce an accounting of Eileen’s “financial affairs from the date of the Power of Attorney in September 2021 to the present including all account statements, invoices, receipts and all other relevant information not later than thirty days from the date of this endorsement”.

41The only meaningful financial disclosure that Deborah produced in accord with that order was contained in her “Affidavit of Documents” of January 2, 2024. That affidavit was served more than ten months after Harris J.’s deadline. It contained both Deborah’s response to this application and her disclosure pursuant to the Harris J. order.

42In the eleven months following the Harris J. order, Deborah managed to produce only a limited number of bank statements from one account, a chequing account with Pace Credit Union. The statements that she produced were for the thirteen month period between August 31, 2021 (when the account contained $24,870) and September 30, 2022 (when the account balance was $15,265.22). Deborah fails to explain why she failed to produce any further bank records, including any records from October 2022 onward, or any line of credit statements.

43Deborah’s disclosure also includes a few bills for the Home, including a property tax bill, which she says were paid by Steven. She also produced what appear to be receipts for two fuel bills, totalling $1,212, both dated December 18, 2023, which she also deposes to have been paid by Steven. Why the fuel bill reached $1,212, and was only paid after this application was originally returnable is left unsaid.

44The Harris J. disclosure order of January 30, 2023 also required Deborah to produce within 30 days “all medical, nursing and residential care reports with respect to Eileen Pettipas from the time of the 2021 Power of Attorney to the present”. Yet Deborah only produced the records of the Shelburne Residence and only did so in her January 2, 2024 affidavit, more than eleven months after the Harris J. order.

45Deborah claims that Eileen’s family doctor, Dr. Roger Cormier, no longer practices medicine and that his records are unavailable. In support of that claim, she attaches to her affidavit an online printout from the Ontario College of Physicians and Surgeons (“CPSO”) regarding Dr. Cormier.

46However, the document describes Dr. Cormier’s membership status as “Active Member as of 14 Jun 1982”.It describes his “current or past CPSO registration class” as “Independent Practice as of 22 Jun 1983”. It speaks of him possessing admitting privileges at the Headwaters Health Centre. Page 2 of the document offers a location for Dr. Cormier’s medical records, from a medical group called the Dufferin Area Family Health Team. Yet more than eleven months after Harris J. made his order, Deborah claims to be unable to obtain those records.

Credibility

47One other factor that I must consider in regard to Denise and Deborah’s competing claims is that of credibility. Nothing in the materials or arguments before me causes me to question Denise’s credibility. Most of her assertions are backed by documentary evidence. The same cannot be said of Deborah.

48I prefer the credibility of Denise when it conflicts with that of Deborah for the following reasons:

1. Deborah has failed to produce most of the documents that could confirm the propriety of her handling of her mother’s property.

2. In fact, Deborah has breached a court order with both the timing and volume of her disclosure.

3. It is reasonable in the circumstances for the court to infer that the disclosure is delayed and deficient because those records would not assist Deborah’s claims to have properly taken care of her mother’s finances and personal care, free of impropriety.

4. For reasons set out above, I do not accept Deborah’s claim to be unable to obtain the records of Dr. Roger Cormier.

5. Deborah was ordered by Harris J. to pay costs of the proceeding before him of $1,500 within 60 days. She failed to obey that order. While that non-payment is not relevant to her credibility, Deborah’s excuse for nonpayment is simply incredible. She claims to have received a letter from Harris J. excusing her from that payment pending further order. Of course, she fails to produce the purported letter. Denise’s lawyer denies that such a letter exists. If it were sent, she would have received a copy. I reject Deborah’s claim that Harris J. would write to her to tell her to ignore his own order. I find that her claim is simply false. The claim further diminishes Deborah’s credibility.

Eileen is Incapable of Making her own Personal Care and Financial Decisions

49Here, there is no dispute between the parties that Eileen is presently incapable of making her own personal care and financial decisions.

50A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision: Substitute Decisions Act, 1992, S.O. 1992, C. 30. ("SDA"), s. 6

51A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision: SDA s.45.

52It is a prerequisite to the appointment of a guardian that a person be incapable of managing their personal care and/or property and making decisions on their own behalf: Substitute Decisions Act, 1992, S.O. 1992, C. 30.("SDA"), s. 22(1) and 55 (1).

53The evidence cited above makes Eileen’s incapacity perfectly clear. Further, there is no alternative course of action to protect Eileen’s interests if a power of attorney or guardian were not appointed.

Issues

54Thus, the remaining issues in this application are:

1. Are the 2021 Powers of Attorney in favour of Deborah invalid?

2. Should Deborah be removed as attorney over Eileen’s property and person?

3. Who should be appointed as Eileen’s guardian/attorney over property and person?

Issue no 1: Are the 2021 Powers of Attorney in favour of Deborah invalid?

55Under s. 8(1) of the SDA, the following are the indicia of the capacity to grant a power of attorney:

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.

56A 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: SLA s.9(1) and 47(1). A continuing power of attorney also remains valid if, after executing it, the grantor becomes incapable of giving a continuing power of attorney: s.9(2).

57A person is incapable of managing property if he or she is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision: SDA s. 6.

58The law regarding the capacity to execute a valid will applies as well 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 v. Brown, 2021 ONSC 3366 at para. 90, affd. 2023 ONSC 151, Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, at para. 85.

59At para. 91 of Rudin-Brown, H.J. Williams J. set out the five following factors for the court’s consideration regarding “suspicious circumstances” in the making of wills, which also apply as well to powers of attorney:²

(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).

60I have modified those factors so that they apply to powers of attorney, and review them below:

The extent of Eileen’s physical and mental impairment around the time the 2021 Powers of Attorney were signed

61As Dietrich J. wrote in Stewart v Zawadzinski, cited above, at para. 47

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 SCC, [1946] 4 D.L.R. 225 (S.C.C.), at para. 22; Banton v. Banton, 1998 ON SC, [1988] 164 D.L.R. (4th) 176 (Ont. Gen. Div.), at paras. 63 and 65.

62Looking to Eileen’s physical and mental impairment at the time of the execution of the 2021 Powers of Attorney:

1. The police wellness check of August 11, 2021 offered the lay opinions of a police officer that Eileen presented as: “cognitively impaired”, “very confused and unable to make informed decisions” and appearing “to be in advanced stage of dementia/Alzheimer”. This wellness check took place just over two months before the 2021 Powers of Attorney were signed.

2. Ms. Parker’s in-home assessment showed that Eileen was cognitively impaired just over seven weeks before she executed the 2021 Powers of Attorney. Eileen had a MoCA score of 10/30. Her subtest-scores were all problematic, including a delayed recall subtest-score of 0/5; visuospacial/executive subtest-score of 2/5; as well as attention and orientation subtest-scores of 3/6 each. Ms. Parker opined that Eileen “may not have cognitive capacity/judgment to manage safely on her own in an emergency situation”.

3. Ms. Parker’s report also speaks to the extent of Eileen’s physical impairment at the time of the capacity assessment;

4. On May 19, 2022, about seven months after the powers of attorney were signed, the Shelburne Residence’s intake report stated that Eileen was suffering from short and long-term memory problems, as well as moderately impaired cognitive skills for daily decision making. The report also spoke to Eileen’s incontinence and other physical incapacities.

5. Denise’s evidence sets out clear instances of Eileen showing cognitive decline prior to the execution of the 2021 Powers of Attorney. Deborah does not challenge that evidence.

6. Eileen was taken to Larry Haskell to prepare her 2021 Powers of Attorney and will. None of his records, including any potential assessment of Eileen’s capacity to execute valid powers of attorney have been released. This is the case even though Deborah, as Eileen’s attorney, could have obtained them and presented them to the court.

Whether the powers of attorney in question constitute a significant change from the former powers of attorney

63There is no dispute that the 2021 Powers of Attorney constitute a significant change from Eileen’s two previous powers of attorney. Her 2015 Powers of Attorney named Denise as the alternate attorney (to David Sr). Eileen’s 2020 Powers of Attorney, executed after David Sr.’s death, named Denise alone as her attorney. Yet just thirteen months later, Eileen switched her attorney designation to Deborah, with her son, Steven, as the alternate. Denise has no role.

64Moreover, unlike the 2015 and 2020 Powers of Attorney, which require the grantee to be incompetent before they become effective, the 2021 Powers of Attorney are not subject to any condition. They immediately grant Deborah the power to make all decisions regarding Eileen’s personal care and property.

Whether the Powers of Attorney in question generally seem to make sense in protecting Eileen’s interests

65There is no evidence before the court which explains why Eileen would want to change attorneys so soon after confirming Denise as her attorney. There had been no breakdown in their relationship. There is no evidence that Denise had failed in any responsibility towards Eileen. From the uncontested evidence, Deborah had just recently returned to Eileen’s life after a lengthy absence.

The factual circumstances surrounding the execution of the Powers of Attorney

66The court has been offered no evidence regarding the manner of execution of the 2021 Powers of Attorney. It has only been informed that Deborah took Eileen to a solicitor of Deborah’s choice, Larry Haskell. There is no evidence of a previous relationship between Mr. Haskell and Eileen.

67Denise deposes that she learned of an attempt by Deborah to arrange an appointment with Eileen’s previous lawyer, Mr. Ball. Denise cancelled it, suspecting that Deborah was looking to change Eileen’s powers of attorney and will. Denise points out that Mr. Ball’s reporting letter stated that he required medical evidence, presumably of Eileen’s competence, before he would change her will. Denise’s implication is that Mr. Haskell was not as scrupulous as Mr. Ball.

68No one but Deborah could offer proof that Mr. Haskell had been appropriately careful about Eileen’s capacity before allowing her to execute the 2021 Powers of Attorney. However, Deborah appears to have resisted producing Mr. Haskell’s file when Denise moved for its release. Harris J. chose not to order that release.

69Deborah could have, for example, produced evidence from Mr. Haskell or his file, demonstrating that he assessed the issue of Eileen’s capacity before he drafted her 2021 Powers of Attorney and will. She could have produced a positive assessment of Eileen’s capacity around the time that Eileen executed the 2021 Powers of Attorney. She could have provided other evidence of Eileen’s capacity.

70In sum, the person with most knowledge of the circumstances surrounding the execution of the 2021 Powers of Attorney offers no evidence demonstrating the propriety of those circumstances.

Whether the attorney was instrumental in the preparation of the Powers of Attorney

71No evidence has been presented to the court of a previous professional relationship between Eileen and Mr. Haskell. Eileen had utilized the services of the family’s lawyer, Mr. Ball, as recently as 2020 regarding her 2020 Powers of Attorney and her will. In the face of those facts and absent any other evidence to the contrary, the only reasonable inference available to the court is that Deborah was instrumental in the execution of the 2021 Powers of Attorney with a lawyer of her choice.

Conclusion Regarding Suspicious Circumstances

72When I consider all of the factors cited above, I find that the 2021 Powers of Attorney were prepared in suspicious circumstances. Those circumstances obviate the presumption of Eileen’s capacity to execute the 2021 Powers of Attorney. It was available to Deborah to provide evidence which could overcome the suspicion raised by the circumstances of the making of the 2021 Powers of Attorney.

73As Denise’s counsel writes in her factum:

Without evidence [demonstrating capacity], it is hard to imagine that a person assessed to be with impaired cognition and a score of zero on recollection several months prior to the purported execution of the 2021 Powers of Attorney would have the capacity to grant powers of attorney.

74I adopt that statement and find that Eileen lacked the capacity to grant a power of attorney when she signed the 2021 Powers of Attorney.

Issue No 2: Should Deborah be removed as attorney over Eileen’s property and person?

75I find that Deborah should be removed as Eileen’s attorney for two reasons: 1) the 2021 Powers of Attorney that appointed her are invalid; and 2) she has failed in her role as attorney, both before and after Eileen entered into the Shelburne Residence, to prioritize Eileen’s best interests.

76The first reason is self evident based on my findings above. I have found that Eileen, was not competent at the time of executing her 2021 Powers of Attorney. They are invalid.

77Even in the face of that finding, the court could name Deborah the guardian of Eileen’s personal care and property. But I choose not to do so for the following reasons:

1. Under SDA s.32 (1), a guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty, integrity and good faith, for the incapable person’s benefit. Deborah’s deficient disclosure does not allow the court to find that she has met those obligations. In fact, I make the contrary finding when considering:

i. the failure to pay Eileen’s bills on time;

ii. the placement of Eileen’s line of credit into collections as well as Deborah’s failure to explain that state of affairs or make any disclosure regarding that line of credit;

iii. the termination of Eileen’s telephone and television services, presumably for financial reasons;

iv. the tardiness of Deborah’s preparation of Eileen’s tax returns. The agreement between Deborah and Shelburne Residence speaks of Deborah completing Eileen’s tax returns to see whether she would be eligible for a rent discount at the senior’s residence.

v. the fact that Steven lives in the Home, rent free. That fact is not ameliorated by Steven’s payment of certain expenses, including property taxes and utilities, which he consumes. Those payments do not make up for absent rent. The failure to charge rent to Steven demonstrates that Eileen’s property is not being properly utilized for Eileen’s benefit. That concern is particularly acute when considering the defaults that Deborah has allowed Eileen to enter into regarding rent, phone, television and line of credit.

vi. The Home may have to be sold or at least rented out to ensure that Eileen’s expenses are paid.

vii. the risk that Eileen will lose her placement or utilities because of future non-payment;

viii. Deborah’s failure to provide up-to-date bank statements for Eileen’s savings and or any statements for her line of credit, despite a court order. This absence raises further serious concerns about the management of Eileen’s finances and whether they are being utilized for her welfare alone;

2. I am concerned that Deborah is not governable in the management of her mother’s affairs. Harris J.’s order for disclosure of vital financial and medical information has, in large measure, been disobeyed. I am not satisfied that any further orders or directions regarding Eileen’s property will be obeyed.

3. I add that there are more serious allegations of financial malfeasance against Deborah, which I do not need to resolve at this stage in order to make my finding regarding her failure to fulfil her fiduciary duties to Eileen. They can be assessed when Deborah is asked to pass accounts for her time as Eileen’s attorney. There are no such allegations, let alone evidence regarding Denise’s conduct.

4. Under SDA s. 66 (1) and 67, Deborah has an obligation to perform her duties as attorney for personal care "... diligently and in good faith." I find that she has failed to meet that obligation. In making that finding, I am relying on:

i. the condition Eileen was frequently left in while still in the Home;

ii. the termination of utilities that are vital to Eileen’s enjoyment of life and communications with the world while in the Shelburne Residence;

iii. Deborah’s failure to produce Eileen’s medical records for the period before she entered the Shelburne Residence.

5. Further, under SDA s. 66(6), one way in which an attorney must fulfil her obligations regarding personal care is to "... foster regular personal contact between the incapable person and supportive family members and friends of the incapable person." That has not occurred. In fact, the evidence, including the exclusion of Denise’s name as a contact for the Shelburne Residence shows her attempts to exclude Denise from having a meaningful role in Eileen’s life. In saying this, I am making no findings as to the application of Covid restrictions at the Shelburne Residence as I lack evidence to make such a determination.

6. Under SDA ss. 66 (7), an attorney is required to "... consult from time to time with supportive family members and friends of the incapable person who are in regular personal contact with the incapable person ...". That has not occurred, and is not likely to occur if Deborah remains as Eileen’s power of attorney.

Issue No. 3: Who should be appointed as Eileen’s guardian/attorney over property and person?

78Denise asks me to simply re-appoint her as Eileen’s attorney under the 2020 Powers of Attorney if I find that the 2021 Powers of Attorney are invalid. But in the circumstances, I do not find that it is best to simply engage in the mechanistic exercise of a reversion to powers of attorney which were executed under difference circumstances than exist now. Rather, I believe that it is best to take a holistic approach to the selection of the person who is best suited to protect Eileen’s best interests, as they presently exist.

79That being said, my engagement in that process leads to the same result: that Denise should be selected as Eileen’s guardian for both personal care and property. I make this finding because:

1. When she was competent, whether in 2015 or 2020³, Eileen chose Denise as her attorney. She did so twice, naming Denise as David Sr.’s alternate in 2015 and after David’s death, her sole attorney in 2021.

2. The evidence before me demonstrates that Denise has always had a close relationship with Eileen. In fact, they had planned to live together so that she could take care of Eileen and David Sr. in their old age.

3. Denise moved to Nova Scotia as part of that plan. Yet she returned to Ontario to care for her father and mother when David Sr. became seriously ill.

4. Denise has exhibited a motivation to care for her mother free of any personal reward and at times at personal financial sacrifice. I have no reason to believe that Denise has an ulterior motive in either moving to Ontario for a time to take care of her parents or in making this application.

5. Denise’s application is consented to by her other remaining sibling, David Jr., as well as their adult children.

6. Denise is a trained nurse who understands Eileen’s medical condition. She is capable of communicating directly with the nurses at Shelburne Residence in order to ensure Eileen’s needs are being met.

7. No other person, save Deborah, has stepped forward to seek the role of attorney or guardian for Eileen.

8. The Office of the Public Guardian and Trustee has considered Denise’s Management Plan and Guardianship Plan. It offers no objection to them.

Deborah’s Objections to Denise’s Appointment

80Deborah raises three points against Denise’s appointment, which require consideration and response. First, she points out that Denise resides in Nova Scotia while Eileen resides in this jurisdiction.

81Subsection 23(3) of the SDA prohibits a non-Ontario resident from being a guardian for property. But the prohibition is not absolute. Rather, the SDA makes the prohibition subject to court order, which involves the provision of security for the value of the property. The provision grants the court a great deal of discretion in that regard: s. 23(4).

82Here, Eileen chose Denise as her attorney in 2020, even though Denise’s primary residence at the time was still in Nova Scotia. Denise was in Ontario only to help her parents.

83I do not feel that a s. 23(4) bond is necessary. In fact such a bond may restrict Denise’s necessary role as her mother’s guardian for property. In this modern age of electronic banking and telecommunication, Denise’s residence outside of Ontario is not an impediment to looking after her mother’s property interests. I add that I am not concerned that Denise will be anything but scrupulous in the execution of her fiduciary duties towards Eileen.

84Further, Eileen is resident in the Shelburne Residence, where her physical, day-to-day needs are being met. With Denise’s nursing background and modern telecommunication, she can monitor Eileen’s care from Nova Scotia. Denise intends to remain in constant touch with Eileen and the Shelburne Residence staff.

85Deborah’s second objection is her concern that Denise will move Eileen to Nova Scotia, away from her and her part of the family. That concern is easily resolved. During the hearing, Denise undertook not to move her mother to Nova Scotia and agreed to an order to that effect if she is successful. That position is in Eileen’s present best interests as she is well-settled at the Shelburne Residence. Her physical needs are being met by the staff at the residence. I order below that Eileen will not be moved to Nova Scotia without further court order.

86Deborah’s third objection is that if granted control of Eileen’s property, Denise will sell the Home. Deborah’s evidence is that her adult son, Steven, is the only resident of the Home. As set out above, he is living there rent-free. I understand that Steven effectively grew up in the Home. But I am told that he is 31-year-old man and that he is employed. He has no indefinite entitlement to remain in the Home; particularly rent-free.

87The Home is an asset that must be utilized during Eileen’s lifetime for her exclusive benefit. That is the plan that Denise offers to the court in her Guardianship Plan. If the Home must be sold or rented out, with the profits conservatively invested to assist in supporting Eileen in her infirmity and ensuring that she will not lose her placement, that step must be taken. It is for Eileen’s guardian to make that decision, based only on Eileen’s best interests.

88I find that Denise’s Guardianship Plan and Management Plan for Eileen are prudent, reasonable and in Eileen’s best interests. I adopt them.

Disposition

89For the reasons cited above:

1. I declare that Eileen is a person incapable of making financial and personal care decisions within the meaning of s. 25 (1) and s. 45 of SDA and managing her own property within the meaning of s. 6 of the SDA, and as such, requires decisions to be made on her behalf by a person who is authorized to do so.

2. I declare that Eileen’s 2021 Powers of Attorney for property and for personal care, are not valid;

3. I order that Deborah no longer act as Eileen’s power of attorney for personal care or property;

4. I appoint Denise as Eileen’s guardian for personal care and property;

5. I order that if necessary, Denise, and/or her lawyers, Hummingbird Lawyers LLP and Ioulia Vinogradova, are hereby entitled to compel production of all health care information, medical records and financial records and information from any bank, accountant, financial advisor, bookkeeper or otherwise relating to Eileen, in the same manner and to the same extent as Eileen would be able to, including but not limited to records from:

i. Eileen’s healthcare providers,

ii. the Shelburne Residence Long Term Care

iii. Bayshore Home Health

iv. Lynn Nursing Home and Community Care Support Services,

v. Deborah.

6. Denise and/or her agent are granted leave to compel Deborah to apply to pass her accounts as Eileen’s attorney for property for the period from August 2021 to the date of this Order and ongoing.

7. Denise shall not remove Eileen from the Province of Ontario without further order of this court.

8. I adopt Denise’s Guardianship Plan and Management Plan for Eileen, as set out in her application record.

9. Denise shall serve an amended Management Plan on the Public Guardian and Trustee for approval pursuant to s. 32(11) of the SDA, within ninety days of this order.

10. Denise will serve and file an amended Management Plan for Eileen pursuant to section 32(11) of the SDA in the event of any material change in her financial circumstances.

11. Denise will act in accordance with the Guardianship Plan filed in this application.

12. Denise will serve and file an amended Guardianship Plan for Eileen pursuant to s. 66(16) of the SDA in the event of any material change in her circumstances including, but not limited to, any change in her residence.

13. The application to find Deborah in contempt of the order of Harris J. of January 30, 2023 is adjourned sine die, returnable on 30 days’ notice.

Costs

90The Public Guardian and Trustee’s fee for reviewing this Application, as approved by the Attorney General in the amount of $250.00 plus HST of $32.50, shall be paid forthwith to the Public Guardian and Trustee from the property of Eileen Bessie Pettipas.

91The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Denise may submit her costs submissions of up to three pages, double-spaced, one-inch margins, within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. , LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. Deborah may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.

__________________________ Kurz J.

Footnotes

1. 1One sister, Darlene, passed away in December 2021, while another, Donna, passed away in 1999.
2. 2See also Nguyen-Crawford, at para. 89 - 93, citing Vout v. Hay, 1995 SCC, [1995] 2 S.C.R. 876, at para. 2, and Stewart v Zawadzinski, 2023 ONSC 387 at para. 44-46.
3. 3There is no evidence that Eileen was incompetent at the time of execution of the 2015 or 2020 Powers of Attorney.