COURT FILE NO.: CV-24-00714940-00ES DATE: 20241108

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rosemary Maki, Applicant AND: Lucien Cammaert, Willy Cammaert, and the Public Guardian and Trustee, Respondents

BEFORE: Justice B. Dietrich

COUNSEL: Nima Hojjati, for the Applicant Devan Munch, for the Respondent, Lucien Cammaert Gary J. Marcuccio, s. 3 counsel for the Respondent, Willy Cammaert

HEARD: October 3, 2024

ENDORSEMENT

Overview

[1] This hearing involves Willy Cammaert (“Mr. Cammaert”) and the management of his property and his person. Mr. Cammaert is the father of the applicant, Rosemary Maki (the “Applicant”), and the respondent, Lucien Cammaert (the “Respondent”).

[2] Mr. Cammaert is 89 years of age and was recently admitted into Manitoulin Lodge, a long-term care facility in Gore Bay, Ontario.

[3] The Applicant and the Respondent agree that Mr. Cammaert has not had the capacity to manage property or make personal care decisions since at least February 2024. They do not agree on when Mr. Cammaert first lacked capacity to manage his property. The Respondent asserts that Mr. Cammaert managed his own property prior to having a stroke in February 2024, and after that time, the Respondent assisted Mr. Cammaert in managing his property. The Applicant asserts that the Respondent has been involved in the management of Mr. Cammaert’s property, as an attorney for property, a trustee de son tort, or otherwise as a fiduciary going back as far as 2016.

[4] The Public Guardian and Trustee appointed Gary J. Marcuccio as s. 3 counsel for Mr. Cammaert pursuant to an Order of Faieta J. dated February 26, 2024.

[5] Pursuant to an endorsement by Sanfilippo J., the parties attend at this hearing to address the Applicant’s request for leave under s. 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) for an order compelling the Respondent to pass his accounts regarding his management of Mr. Cammaert’s property.

[6] For the reasons that follow, I find that the Applicant should be granted the leave she seeks. The Respondent should be required to pass his accounts regarding his management of Mr. Cammaert’s property from January 21, 2016 to present.

Background Facts

[7] In December 2012, Mr. Cammaert executed a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care. In these documents, he named the Respondent as his attorney for property and his attorney for personal care, respectively, and he named the Applicant as his alternative attorney for property and his alternative attorney for personal care.

[8] After the Applicant commenced this application, the Respondent provided the Applicant with copies of a later General and Continuing Power of Attorney for Property and a Power of Attorney for Personal Care, each dated November 18, 2021. These documents were made with the assistance of a lawyer, Barry Poulson. In each of these Powers of Attorney, Mr. Cammaert appointed the Respondent as his attorney, and he did not appoint the Applicant as his alternative attorney. On the General and Continuing Power of Attorney for Property, Mr. Cammaert appears to have misspelled his surname, printing “Cammart” instead of “Cammaert”. On the Power of Attorney for Personal Care, Mr. Cammaert again appears to have misspelled his surname, writing “Cammaet” instead of “Cammaert”. On an affidavit of witness attached to the Power of Attorney for Personal Care, Mr. Cammaert appears to have misspelled his surname, writing “Cammart” instead of “Cammaert”. On the affidavit of witness attached to the Power of Attorney for Property, Mr. Cammaert appears to have signed his surname correctly, in cursive writing, as “Cammaert”. On the documents prepared and witnessed by Mr. Poulson, and signed by Mr. Cammaert on November 18, 2021, Mr. Cammaert appears to have spelled his first name inconsistently throughout the documents as “Willy”, “Will”, “Willee”, and “Wilee”.

[9] From approximately 2003, the Respondent lived with Mr. Cammaert at a farm property in Merlin, Ontario. The Respondent’s evidence is that Mr. Cammaert spent a lot of time in Chatham where his girlfriend had an apartment. In 2016, following Mr. Cammaert’s girlfriend’s death, Mr. Cammaert lived at the farm property only. The farm property was severed into two lots, one of which was agricultural and the other of which was residential.

[10] Title to the agricultural lot, being the farm property, was transferred from Mr. Cammaert to himself and the Respondent, jointly, for no consideration. It was sold on April 15, 2016 for $242,000.

[11] Title to the residential lot was held by Mr. Cammaert and the Respondent jointly for a time, but title was transferred to Mr. Cammaert alone before it was sold for $125,000 on August 16, 2016.

[12] Around June 2016, Mr. Cammaert and the Respondent purchased a residence in Chatham, Ontario (the “Chatham Property”) for $149,000, where they lived together for about five years. They sold this property in June 2021 for $295,000. The net proceeds of sale were $276,548.01. Kenneth Rhodes, a lawyer, appears to have represented both Mr. Cammaert and the Respondent on all real estate transactions relating to the three properties.

[13] Mr. Cammaert signed a direction to Mr. Rhodes on June 29, 2021, directing that all proceeds from the sale of the Chatham Property be paid to the Respondent.

[14] The Respondent then purchased a residential property in Espanola, Ontario (the “Espanola Property”) for $281,000. He retained Mr. Rhodes to advise him on purchase. The Respondent’s evidence is that he paid a $10,000 deposit and used the $276,548.01 in proceeds from the sale of the Chatham Property to pay the purchase price. Mr. Cammaert and the Respondent then resided together in the Espanola Property.

[15] The Respondent acknowledges that Mr. Cammaert and he held two joint accounts at the Royal Bank of Canada (“RBC”), known as account 485, and account 870, and the Respondent produced records from July 5, 2017 to August 28, 2018 regarding these accounts. The Respondent has adduced no evidence to explain how or why the RBC accounts became joint accounts. The Respondent also acknowledges that Mr. Cammaert and he jointly held various guaranteed investment certificates (“GICs”) at RBC between July 5, 2017 and August 28, 2018. The Respondent has adduced no evidence to explain how or why the GICs were held jointly between Mr. Cammaert and him. The Respondent’s evidence is that Mr. Cammaert made a gift to him of one of the GICs with a value of $165,000.

[16] The Respondent’s evidence is that the funds in the RBC accounts and investments were generated from share cropping work done until the farm property was sold in 2016.

[17] At Manitoulin Lodge, Mr. Cammaert is paying $2,036.40 for a “basic bed”, as distinct from a semi-private or private bed, at rates ranging from $2,315.93 to $2,909.36. In the paperwork regarding Mr. Cammaert’s stay at Manitoulin Lodge, his monthly budget for expenses (e.g., snacks, toiletries, gifts, etc.), as fixed by the Respondent, is $10 per month. The Applicant submits that Mr. Cammaert should have more comfortable accommodation and a larger monthly budget. The Respondent submits that he accepted the basic bed on Mr. Cammaert’s behalf because Mr. Cammaert was on a waitlist for a bed, and it was the first bed made available to him. The Respondent submits that he was advised by a case worker, Letitia Robinson, who was assisting him on the long-term care application, that if he had not accepted the basic bed, Mr. Cammaert would have lost his place on all long-term care waiting lists, his file would have been closed, and he would have been unable to reapply for long-term care for 12 weeks. The Respondent submits that Mr. Cammaert is still on a waitlist for a long-term care in Espanola.

Positions of the Parties

The Applicant’s Position

[18] The Applicant submits that she has a genuine interest in Mr. Cammaert’s welfare, and she has a significant concern regarding the Respondent’s management of Mr. Cammaert’s property. Her opinion is based on the Respondent’s advice to her that Mr. Cammaert is impecunious, and that he could not afford to pay a retainer of $5,000 to hire s. 3 counsel.

[19] The Applicant submits that the Respondent has been extensively involved in the management of Mr. Cammaert’s finances since at least 2016. She also submits that through the Respondent’s management, most of Mr. Cammaert’s property has been transferred to the Respondent for no consideration. Accordingly, she submits that a passing of accounts is necessary to restore Mr. Cammaert’s assets to him to fund his comfort and well-being.

[20] The Applicant contends that Mr. Cammaert’s property will be restored to him through claims of one or more of a resulting trust, a purchase money resulting trust, undue influence by the Respondent, unconscionable procurement by the Respondent, and breach of fiduciary duty by the Respondent.

[21] The Applicant further submits that the Respondent has not been forthcoming with information about Mr. Cammaert’s finances. For example, initially the Respondent stated that Mr. Cammaert was impecunious and could not pay a $5,000 retainer for s. 3 counsel. Later, the Respondent deposed that Mr. Cammaert had an annual income in 2023 of $30,458 from CPP, OAS, and monthly income from his locked-in retirement plan.

The Respondent’s Position

[22] The Respondent submits that the RBC accounts were Mr. Cammaert’s accounts and that Mr. Cammaert, as opposed to the Respondent, was managing them. The Respondent submits that in or around August 2018, Mr. Cammaert closed the RBC accounts and transferred various GICs to the Respondent because the Respondent had worked on the farm property for many years, and he did not receive any remuneration for doing so. The Respondent submits that to the extent that he could, he would account for the funds transferred to him.

[23] The Respondent submits that he only began acting as Mr. Cammaert’s attorney for property after his stroke on February 27, 2024. The Respondent further submits that prior to that time, Mr. Cammaert was managing his own finances, including his registered retirement income fund (RRIF) with the Bank of Nova Scotia (“Scotiabank”) and his BMO account.

[24] The Respondent submits that he paid for all the repairs on the Chatham Property and invested a lot of time in it. The Respondent submits that he also paid all the carrying costs of the Espanola Property including taxes, insurance, and utilities, and undertook all the repairs, and that he did not charge Mr. Cammaert any rent for occupying the Espanola Property.

[25] The Respondent submits that Mr. Cammaert only became incapable of managing his property after his stroke. He further submits that Dr. Sutherland, who has been treating Mr. Cammaert for the last two years, only opined on April 15, 2024, that Mr. Cammaert was incapable of making decisions with respect to health.

[26] The Respondent also submits that Mr. Rhodes’s file does not include any notes reflecting concerns about Mr. Cammaert’s capacity; and, similarly, the files of Barry Poulson, the lawyer who prepared Mr. Cammaert’s most recent Power of Attorney for Property and Will, contain no notes concerning Mr. Cammaert’s capacity.

Section 3 Counsel’s Position

[27] Mr. Marcuccio, as s. 3 counsel to Mr. Cammaert, submits that Mr. Cammaert is not capable of instructing counsel, but he is capable of expressing his feelings about his family and visitors. Section 3 counsel submits that Mr. Cammaert has communicated that he would like to see his daughter, the Applicant, and her son.

Law

[28] The parties agree that the test for leave to compel a passing of accounts is governed by the decisions of the Court of Appeal for Ontario in Lewis v. Lewis, 2020 ONCA 56 and Dzelme v. Dzelme, 2018 ONCA 1018. To grant leave, the court must be convinced that:

i) the person seeking leave has a genuine interest in the grantor’s welfare; and

ii) a court hearing the application under s. 42(1) of the SDA may order the attorney or guardian to pass his or her accounts: Lewis, at para. 5.

[29] The court has the discretion to order an attorney to pass their accounts, and factors that can be considered to exercise this discretion include:

i) the extent of the attorney’s involvement in the grantor’s financial affairs; and

ii) the existence of any significant concerns with the management of the grantor’s affairs, including a significant erosion of the grantor’s financial position: Lewis, at paras. 4-5, and 15; Dzelme, at para. 7.

Issue

[30] The dispute in this hearing is over the extent of the Respondent’s involvement in Mr. Cammaert’s financial affairs, and significant concerns with the management of Mr. Cammaert’s affairs.

Analysis

[31] The Respondent does not dispute that the Applicant, as Mr. Cammaert’s daughter, has a genuine interest in Mr. Cammaert’s welfare. The Applicant would prefer that Mr. Cammaert’s long-term care be upgraded to a better bed, in a private room, and that he be given a larger budget for expenses to provide for his personal comfort and well-being. The Applicant submits that Mr. Cammaert would have the resources to avail himself of this level of comfort if those resources had not been mismanaged and misappropriated by the Respondent.

[32] The Respondent denies having relied on a Power of Attorney for Property granted to him to manage Mr. Cammaert’s property prior to Mr. Cammaert’s stroke in February 2024. The Respondent asserts that, prior to the stroke, Mr. Cammaert was capable of managing and did manage his own property. The Applicant submits that this latter assertion is not supported by the evidentiary record before the court.

[33] In McAllister Estate v. Hudgin (“McAllister Estate”), Pattillo J. found that incapacity to manage property is not a prerequisite for a passing of accounts since s. 42 of the SDA gives the court the discretion to order a passing of accounts.

[34] For the reasons that follow, I exercise my discretion to grant leave to the Applicant to compel the Respondent to pass his accounts regarding his management of Mr. Cammaert’s property. I find that whether the Respondent was relying on a Power of Attorney for Property granted to him by Mr. Cammaert or not, the Respondent was involved in the management of Mr. Cammaert’s property, including before Mr. Cammaert had a stroke. I also find that the Respondent has not fully accounted for his dealings with that property.

[35] As found by Pattillo J. in McAllister Estate, it is not necessary for me to find that Mr. Cammaert lacked capacity to manage his own property prior to his stroke to require the Respondent to account for part of that period. However, based on the evidentiary record, I find that it is more likely than not that Mr. Cammaert did lack such capacity prior to his stroke.

[36] Unfortunately, all of Dr. Tomen’s medical records were not delivered to the Applicant’s counsel until the day before this hearing. The entire file contains significant relevant evidence.

[37] Included in that evidence, delivered to the Applicant the day before the hearing, is a letter to Dr. Tomen from the Société Alzheimer Society (the “Alzheimer Society”), dated January 21, 2016. The letter states that the Alzheimer Society conducted cognitive testing on Mr. Cammaert, at Dr. Tomen’s request. The assessment was conducted at a meeting at which both the Applicant and the Respondent were in attendance. Mr. Cammaert was reported to have scored 13/30 on the Mini Mental State Examination (“MMSE”), showing “moderate cognitive decline”. Further assessment to facilitate an appropriate diagnosis was recommended.

[38] In a clinical note made by Dr. Tomen on June 20, 2016, Mr. Cammaert’s medical history includes “dementia”. The notes also indicate “Anxiety. Anxious all of the time.”

[39] The Alzheimer Society sent a second report to Dr. Tomen on February 1, 2017. It was reporting on repeat cognitive testing. It reported a MMSE score of 17/30, noting that Mr. Cammaert could not spell the word “world” and he declined to complete the serial 7’s task. On the Montreal Cognitive Assessment (“MoCA”) test, Mr. Cammaert scored 14/30. The Alzheimer Society reported that on the MoCA test, a score of 26 or higher is considered within the normal range. The Alzheimer Society also reported that Mr. Cammaert “expressed limited difficulties with short-term memory” and “slight frustration with his inability to perform certain tasks.” Again, the Alzheimer Society strongly recommended further testing to facilitate a proper diagnosis.

[40] In Dr. Sutherland’s clinical note on Mr. Cammaert, from April 24, 2024, he writes under the heading “Disability Tax Credit”, “[Mr. Cammaert] would be eligible … likely can back date, at least to 2021, although son has been living with him since 2016 (he describes due to financial benefit but cog testing quite impaired at that time)”.

[41] In addition to the medical records from Dr. Tomen that were disclosed to the Applicant immediately prior to the hearing, the Respondent had earlier disclosed other medical records from Dr. Tomen. The Respondent deposed that these earlier medical records did not disclose any evidence of incapacity. I disagree. In those records, there are exchanges between Dr. Tomen’s office and Mr. Cammaert’s pharmacy in Chatham, in which the pharmacist raises questions about Mr. Cammaert’s cognitive function and capacity. Some of those notes are as follows. On September 1, 2018, Chatham Pharmasave sent a note to Dr. Tomen stating: “Hi Dr. Tomen – Mr. Cammaert is NOT quite clear about what to do.” On August 1, 2019, Chatham Pharmasave wrote to Dr. Tomen this note: “During the course of our interactions with the above named patient …, I have come to the conclusion that …Willy Cammaert is incapable of managing their medication regimen on their own for the reasons noted below: • There is evidence of a physical/cognitive/sensory impairment that prevents them from managing their medication; • There is evidence of literacy issues.” On August 12, 2020, another note from Chatham Pharmasave to Dr. Tomen stated: “During the course of our interactions with the above named patient [Mr. Cammaert] and/or discussions with their caregiver, I have come to the conclusion that Willy Ludovicuc Cammaert is incapable of managing their medication regimen on their own…” On February 27, 2022, Dr. Tomen’s file includes this note [to staff]: “Can you please call POA and see how it’s going finding a primary care provider up there [in Sudbury]?”, and the staff’s response: “LM [left message] for son Lucien Feb 28, 2022. Son returned call – no family dr. yet; will take dad to clinic for further refills.”

[42] These notes between Chatham Pharmasave and Dr. Tomen raise the concern that Mr. Cammaert lacks capacity and is demonstrating cognitive impairment going back to at least 2019. The notes also suggest that the Respondent is acting as an attorney. Dr. Tomen directs that the “POA” be contacted, and the staff contact the Respondent. There is no evidence that anyone other than the Respondent, with whom Mr. Cammaert had been living for several years before his stroke, was assisting Mr. Cammaert in the management of his property and his personal care, including managing his medication.

[43] The Respondent does not deny that most of Mr. Cammaert’s property has been transferred to himself. The Respondent submits that Mr. Cammaert gave him the proceeds from the sale of the Chatham Property, but there is no corroborating evidence to support this alleged gift. The Respondent also submits that Mr. Cammaert made a gift of his GICs to the Respondent. But the Respondent offers no corroboration in support of this alleged gift either.

[44] Although the Respondent deposed that Mr. Cammaert managed the BMO account as his own, in fact, based on the record, the BMO account is also a joint account held by both Mr. Cammaert and the Respondent.

[45] For reasons that the Respondent has not adequately explained, it appears that any interest Mr. Cammaert had in real estate, or the proceeds from the sale of real estate, has been transferred to the Respondent. It appears that most of Mr. Cammaert’s liquid assets have also been transferred to the Respondent. Seemingly, on this basis, the Respondent advised counsel to the Applicant that Mr. Cammaert had no money to pay the retainer for s. 3 counsel. The Respondent also advised that Mr. Cammaert was unable to obtain Legal Aid assistance for that purpose. Mr. Cammaert appears to be left with little property other than his CPP and OAS benefits and a locked-in retirement plan.

[46] Based on the evidentiary record, I cannot definitively conclude that Mr. Cammaert lacked capacity to manage his property for the entire period going back to 2016. However, I find, on a balance of probabilities, that the Respondent was involved in the management of Mr. Cammaert’s property, as an attorney for property, a trustee de son tort, or otherwise as a fiduciary of Mr. Cammaert, going back as far as 2016. The evidentiary record includes references to Mr. Cammaert’s decline in cognitive function as early as January 21, 2016 and to Mr. Cammaert’s dementia diagnosis in Dr. Tomen’s notes made on June 20, 2016. As held in McAllister Estate, a finding of incapacity is not a prerequisite to granting leave to compel a passing of accounts. In this case, in my view, it is appropriate for me to exercise my discretion to grant such leave.

Disposition

[47] Leave is granted to the Applicant, pursuant to s. 42 of the SDA, to compel the Respondent to pass his accounts regarding his management of Mr. Cammaert’s property from January 21, 2016 to present. An Order shall issue accordingly.

Costs

[48] The Applicant has been successful in obtaining an order for the relief she seeks regarding this aspect of her application. As the successful party, she is entitled to her costs. Having reviewed the Applicant’s Bill of Costs and heard the submissions of the parties on costs, I fix the Applicant’s costs, on a partial indemnity basis, at $5,235.89. These costs are very similar to the costs that the Respondent would have sought had he been successful. I find these costs to be fair and reasonable.

B. Dietrich J.

Date: November 8, 2024