Court File and Parties

Court File No.: CV-24-94699 Date: 2024/12/10 Superior Court of Justice – Ontario

In the matter of: Substitute Decisions Act, 1992, S.O. 1992, Chapter 30, as amended, sections 22, 27 and 42 And in the matter of: the property of Loreen Snelgrove

Re: The Public Guardian and Trustee, Applicant -and- Loreen Snelgrove, Jason Snelgrove, and Dale Snelgrove, Respondents

Counsel: Arthur Willwerth, for the Applicant Elena Mamay, for Loreen Snelgrove Jason Snelgrove, Self-Represented Dale Snelgrove, not appearing

Heard: November 28, 2024

Reasons for Decision

Doyle, J.

Overview

[1] The applicant, the Public Guardian and Trustee (“PGT”), requests an order that the respondent Jason Snelgrove (Jason), reimburse the amount of $256,073.50 to the PGT who is the guardian of his mother, Loreen Snelgrove (“Loreen”). She is a vulnerable senior citizen and PGT claims that this amount was misappropriated from January 1, 2019 to March 12, 2024.

[2] Loreen is 76 years old and suffers from dementia. She is currently at the Garry J. Armstrong home, a long-term care facility. Her husband, Lee Snelgrove passed away in January 2015.

[3] Jason was her attorney pursuant to a Power of Attorney for property dated May 10, 2017.

[4] The respondent, Dale Snelgrove (Dale), was named as the alternate attorney. Although served with this Application, he did not formally respond and indicated that he did not wish to be an attorney.

[5] On August 12, 2024, this court declared that Loreen was mentally incapable of managing her own property and appointed the PGT as Loreen’s guardian of property. The matter was adjourned to permit Jason to provide evidence of the accounting of monies with receipts while he was an attorney. At that time, Jason indicated he had other evidence including evidence from his brother and his spouse.

[6] At this hearing, Jason filed an unsworn statement indicating that he was not aware that he had to maintain a record of his spending and receipts. The court allowed him to affirm his statement so that it became evidence at the hearing. Jason was not able to provide a full accounting of the monies spent from his mother’s account. No other evidence was filed.

[7] For the reasons that follow, the court orders Jason to repay the PGT on behalf of Loreen the amount of $247,284.22.

Background

Loreen

[8] The PGT Guardianship Investigation Unit (“GIU”) was contacted by Loreen’s bank, Royal Bank of Canada (“RBC”), in January 2023 alleging that Jason was financially abusing Loreen. The GIU investigated and had reasonable grounds that Loreen was mentally incapable of handling her property and she was at risk of harm.

[9] According to the Ottawa Hospital Geriatric Outreach Team report by Linda Daly, Loreen moved in with Jason in 2016 and he provided her with support including meeting her daily needs of laundry, medication and financial management. Ms. Daly also found that Loreen had trouble articulating concerns and providing details and required cuing from Jason.

[10] On November 20, 2017 Jason told a home care assessor, Kim Thompson, that Loreen was also repeating herself. Ms. Thompson noted that Loreen was oriented to person, place, time and she knew her age.

[11] In 2018, Loreen was diagnosed with mixed dementia (vascular disease, alcohol dementia and Alzheimer’s).

[12] On February 4, 2018, Loreen was deemed unfit to drive a motor vehicle.

[13] According to the records of the Home and Community Care Support Services (“HCCSS”), a provincial agency responsible for coordinating admissions to publicly funded long-term care facilities and to home support, Loreen was suffering cognitive decline since November 2017. At that time, Jason advised the coordinator that Loreen’s short-term memory had worsened since 2014.

[14] Ms. Thompson completed another home care assessment on February 26, 2019, and noted she was aware of her person, place and time.

[15] By December 2020, the HCCSS records show that Loreen was no longer oriented to place nor time.

[16] Loreen moved into the Bearbrook Retirement Residence (Bearbrook) on November 4, 2020 (“Bearbrook”) and she was evicted on December 31, 2022 due to non-payment of rent in the amount of $40,726.50. She was then moved to Garry J. Armstrong Home long-term care facility (Armstrong LTC). The private room was $2,336.92 per month and Jason authorized the City of Ottawa to automatically withdraw that monthly fee. Jason was required to deposit $200 into her long-term care trust account which could be used for her private expenses such as grooming, dental care, activities, cabs.

[17] In December 2022, Jason had contacted HCSS to arrange an urgent long-term care placement after she was evicted from her retirement home, Bearbrook, and she was no longer mentally capable of consenting to admission to long-term care. A behavioural assessment indicated she was confused and unaware of her surroundings.

[18] The December 28, 2022 assessment of Loreen notes that she did not know the date, location, what a long term care home was nor why it was suggested that she live there. She showed little insight into her daily needs but was able to complete tasks on cuing.

Loreen’s property

[19] The bank records and financial records filed indicate that Jason spent $100,200 from January to August 2019 which included the sale proceeds of Loreen’s condominium in Florida.

[20] The funds were withdrawn from her account by way of cash withdrawals and purchases, including from men’s clothing stores, sports supply stores and golf courses.

[21] Loreen’s bank, the RBC, was concerned and restricted Jason’s access and required him to attend the bank in person to complete transactions.

[22] From August 2019 to April 2023 he spent approximately $202,000 by withdrawing cash or writing cheques to himself. The account would often enter an overdraft status, causing numerous bank fees.

[23] In May 2023, the RBC restricted Jason’s ability to withdraw cash or write cheques to himself.

[24] Despite these restrictions, Jason was able to withdraw funds:

• November 2023, wrote a cheque to himself for $2,000; and
• December 2023, withdrew $1,600 cash.

[25] In February 2024, the RBC paid Armstrong LTC $14,300 to reduce Loreen’s rent arrears owed to this long-term care home to $13,000.

[26] Loreen’s income is approximately $3,302.14 per month from various pensions. She currently has arrears owing to the Armstrong LTC. Her monthly payment is $2,909.36. She owes the Canada Revenue Agency (CRA) for taxes and PGT is paying CRA $100 per month towards these arrears.

Position of the PGT

[27] Despite permitting Jason time to provide an accounting and receipts for the expenditures, he has failed to do so. All the banking records were filed and he has had many months to provide explanations for the numerous withdrawals.

[28] From January 2019 to January 2024, the amount of $301,997.50 was withdrawn.

[29] The PGT accepts Jason’s statement that $12,924 of the Visa was paid off of USD currency debt.

[30] The PGT accepts $33,000 for $1,500 per month for 22 months. He would not be entitled to a caregiver allowance when Loreen was in long term care.

[31] The PGT submits that Loreen was mentally incapable of managing her property since January 1, 2019 or that Jason had reasonable grounds to believe that Loreen was mentally incapable of managing her property since at least January 2019.

[32] The PGT submits that the balance owing is $256,067.50.

Section 3 Counsel’s Position

[33] Counsel met with Loreen and she does not oppose the application and the money being sought and wanted to convey that she cares for both of her sons.

[34] Counsel indicated that although Loreen has difficulty speaking, she can answer direct questions with a ‘yes’ or ‘no’ and she can engage and carry on her daily activities given time and patience.

Jason’s Position

[35] Throughout his communications with PGT, Jason attempted to explain some of the expenditures.

[36] His affidavit filed confirms he took care of his parents and played an important role in caring for his mother when her husband (his father) passed away.

[37] He states he was not aware that he had to keep records and receipts and provide for an accounting of the monies spent from his mother’s account.

[38] His mother had told him to pay for items for his family and it is his position that she was able to instruct him to do so as she was capable of managing her property. In his submissions, Jason argued that his mother was capable of providing instructions to him until at least 2023.

Issue #1: When was Loreen mentally incapable of managing her property and did Jason owe his mother a fiduciary duty?

[39] For the reasons elaborated below, the court finds that Jason owed his mother a fiduciary duty.

[40] Section 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, (“SDA”), defines the incapacity to manage property as:

A 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. 1992, c. 30, s. 6.

[41] The court is not prepared to find that Loreen was incapable of managing her property as of January 1, 2019, as there is no capacity assessment as of that date.

[42] Loreen has been experiencing cognitive decline for several years.

[43] In 2016, Jason noticed Loreen’s memory cognition decline and obtained a referral to Bruyere Hospital for Alzheimer’s disease and dementia.

[44] Jason admitted that she was not capable when he took over as attorney in May 2017, and the HCSS records reported issues of cognition and short-term memory as far back as 2014.

[45] Yet, he also states that she was able to provide him instructions regarding expenditures up to 2023.

[46] Based on the evidence before the court, the court will not speculate as whether she was legally unable to manage her financial affairs. The court cannot just make such a finding on the basis that she had dementia which is a broad diagnosis and has many levels and degrees of symptoms.

[47] However, a fiduciary relationship existed between Jason and his mother.

[48] See Wedemire v. Wedemire, 2017 ONSC 689 at paras. 51 to 54, where the court stated:

[51] In the recent case of Buccilli and Drapery Interiors Etc. Inc., v Pillitteri et al, 2012 ONSC 6624, aff’d 2014 ONCA 432, [2014] O.J. No. 2561, Newbould J. cited Frame v. Smith, [1987] 2 S.C.R. 99, and Alberta v. Elder Advocates of Alberta Society, [2011] 2 S.C.R. 261, 2011 SCC 24 as the leading authorities which address the necessary prerequisites for the existence of a fiduciary duty. In Frame v. Smith, Wilson J. articulated three general characteristics of relationships in which fiduciary obligations are imposed:

a. The fiduciary has scope for the exercise of some discretion or power.

b. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.

c. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

[52] In Elder, McLachlin C.J. narrowed these characteristics to articulate a test which may be summarized as follows. First, the evidence must show that the alleged fiduciary gave an undertaking of responsibility, express or implied, to act in accordance with the duty of loyalty imposed on him or her. As Newbould J. put it in Buccilli, at para. 181:

The undertaking may be found in the relationship between the parties, in an imposition of responsibility by statute, or under an express agreement to act as trustee of the beneficiary’s interests.

[53] Second, the duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them. Parent-child is one of those historically recognized relationships.

[54] Finally, the alleged fiduciary’s relationship must affect the legal or substantial practical interests of the beneficiary. As Newbould J. noted at para. 183, a property interest is the most obvious example.

[49] In this case, Jason was in a fiduciary relationship to Loreen for the entire period during which the transfers and withdrawals described above took place.

[50] In accordance with the fiduciary definition found in Wedemire, the court finds that:

• Jason was in position where he could exercise power over their finances which affected Loreen’s interests and she was peculiarly vulnerable to or at the mercy of Jason;
• Jason was her attorney since May 2017 thereby imposing on him a fiduciary duty, she was residing with him and he undertook helping her with her daily tasks as evidenced by the report filed;
• Jason owed the duty to Loreen and he had discretionary power over her finances; and
• Finally, Jason’s fiduciary relationship affected Loreen’s property.

[51] Jason took over as an attorney for property in May 2017 as he stated that, given her challenges, he needed to formally take over the POA responsibilities.

[52] Accordingly, the court finds that Jason was in a fiduciary relationship since May 2017.

Issue #2: Did Jason breach fiduciary obligation to Loreen and how much is owed to Loreen?

[53] The court finds that Jason, as attorney for property, was a fiduciary and his duties were to be exercised diligently, with honesty and integrity and good faith. He failed to do so.

[54] See s. 32(1) and s. 38(1) of the SDA. Section 38 of the SDA stipulates that an attorney for property owes the same fiduciary duties as a guardian of property if the grantor is incapable of managing property or if the attorney has reasonable grounds to believe that the grantor is incapable of property.

[55] Further, a guardian of property has a duty to account in accordance with s. 32(6),

A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property. 1996, c. 2, s. 20 (2).

[56] He must exercise reasonable care as would a reasonably prudent person managing her own affairs and not to act contrary to the donor’s interests. The SDA stipulates that the fiduciary must set aside his own interests and act only in the donor’s interests.

[57] The court finds that Jason breached his fiduciary obligation to Loreen in that he:

• Failed to pay her long-term care fees; and
• Allowed her bank account to go into an overdraft position.

[58] Subject to the court’s findings with respect to the two withdrawals to the City of Ottawa and certain cash Christmas gifts, he has not provided any material evidence as required by section 14 of the Evidence Act, R.S.O. 1990 c. E. 23, to corroborate the expenses.

[59] The PGT filed affidavits outlining the results of their investigation by Lucie Payant.

[60] The investigation revealed the following:

• There were 34 cheques from Loreen’s account from January 6, 2022 to December 28, 2023;
• This included the amount of $40,705 in cheques that were cashed, with $31,000 payable to cash and $9,750 to Jason Snelgrove. The cheques appear to be those of Loreen and the endorsement is that of Jason;
• A cheque dated January 6, 2022 for $1,600 with a memo for “Jason’s trip”; and
• December 7, 2023 $1,000 for “Christmas Money for kids”.

[61] PGT relies on the bank statements filed from RBC of Loreen and Jason from January 1, 2019 to September 2023.

Jason’s evidence

[62] In his communications with the PGT and his statements in these proceeding, Jason tried to explain some of the expenses. However, he has failed to provide receipts and explain how they benefited his mother.

[63] He admitted at the hearing that he had breached his fiduciary duty by not paying Bearbrook, although he was not content with the care and complained about the bed bugs which resulted in him discarding many of his mother’s items when she was moved to Armstrong LTC.

[64] He apologized that he did not keep receipts, that he was not aware that he had to do so as attorney and that no one had explained it to him but admitted that “ignorance of the law is not an excuse”.

[65] He was concerned with respect to the position articulated by Ms. Mamay, Loreen’s counsel, who stated that his mother was able to communicate.

[66] Due to his criminal charges, he is restricted from seeing his mother. But he is aware that she is cognitively impaired and cannot have a conversation with anyone and has no idea regarding finances.

[67] He cannot afford to repay the funds as he is working at minimum wage and has to pay his criminal lawyer to defend him on the charges brought against him as a result of these events.

[68] He apologized that he did not act in the “legal way”.

[69] He told the PGT in his cover letter dated July 27, 2024 that Loreen gifted his wife $5,000 and $1,000 to his nieces. There is no corroborating evidence or documentary evidence to support this.

[70] The 56 pages of RBC account records were filed. Jason explained 8 transactions such as a roof repair, loan payment gifts and miscellaneous LTC payments without supporting documentation.

[71] He explained the following:

• April 3, 2019, $10,000 withdrawal for “roof repair”;
• July 24, 2019, $8,019.13 loan payment;
• January 3, 2024, $1,600 withdrawal “Care giver allowance”; and
• April 4, 2024, $2,700 withdrawal “Care giver allowance plus $1,200 for misc bills and expenses”.

[72] Jason told the investigator that Loreen gifted him and his brother $10,000 each and took the entire family for a trip.

[73] At the first hearing, he indicated that his mother was a chronic alcoholic, a drug abuser and had to have cash in her wallet at all time, minimum of $700. She would have 26 oz bottle every day or 1.5 days.

[74] With respect to his mother’s constant request for alcohol, there is evidence that Jason told support services that she stopped drinking in 2018, hence his explanation that some expenditures were for alcohol are confirmed up to that date. (See Fareed v. Wood, 2005 ONSC 22134 and Ontario (Public Guardian & Trustee) v. Harkins, 2011 ONSC 6097). In the latter case, Justice Penny at para. 19 stated that that the obligations of a fiduciary supersede the attorney’s own interests. Citing Szarfer v. Chodos, 1986 ONSC 2508, that “One who undertakes to act on behalf of another act for the exclusive benefit of that other, putting his own interests completely aside”.

[75] In his 7-page affidavit for the hearing, he confirmed that he needed to become his mother’s attorney in May 2017, and that he had been mistreated by the Bearbrook Retirement Home, RBC and the Armstrong LTC. He confirmed his mother’s cognitive ability deteriorated in 2016 and he was not able to maintain expenses due to the RBC's restriction to the statements (which are all before the court in evidence at this time).

[76] He bought items as required by his mother, his niece and his family and took care of her.

[77] In his affidavit affirmed at the hearing, he states:

• He started to attend to his parents’ needs in January 2014 when his father was diagnosed with a glioblastoma brain tumour and had to be brought from Florida to Canada so he could seek treatment that would be covered by OHIP;
• He elaborated in his affidavit that Loreen was an alcoholic, smoked marijuana and self-medicated with prescription medication (e.g. trazadone);
• Once his father became ill, Jason and his wife took care of Loreen’s needs;
• When his father was treated at Toronto’s Princess Margaret Hospital, Jason’s wife stayed with Loreen in a nearby hotel to watch over and “mitigate her efforts to self-medicate”;
• His parents returned to their home in Midland from February 2014 to April 2014, and Jason and his wife would visit regularly;
• His mother’s substance abuse escalated and his father’s health care needed to be managed so they moved in with Jason and his wife in September 2014;
• His father passed away in January 2015 in a hospital bed in Jason’s living room (as his mother-in-law had as well);
• Loreen insisted on returning home to Midland in March 2015 and Jason would visit as often as possible to check in;
• Loreen was further declining into substance abuse;
• In the fall of 2015, Loreen agreed to move in with Jason;
• Loreen insisted on visiting Florida and staying in the trailer that she and her husband had owned;
• She continued to abuse substances, self-isolate and fell while impaired and was brought to the hospital and returned to Canada;
• In the spring of 2016 he initiated the process of obtaining a diagnosis at the Bruyère hospital as he noted issue with her memory and cognition;
• He took care of her, brought her to appointments, prepared meals, went shopping, went for drives and had her participate in group activities;
• Despite the fact that she refused to go out and was losing interest in any activities, she refused to attend counselling as she was depressed and grieving;
• Jason states that his mother always insisted on carrying cash rather than using debit or credit cards. Otherwise, she felt “broke” and while her husband was alive it was easier for her to hide her drinking;
• Once his father became ill, Jason was tasked with bringing his mother to the bank to take out cash in the amount of $500 to $700;
• After the passing of her husband, Loreen said she would spend money as she deemed fit including small amounts of gifts to Jason, his brother, wife and granddaughter;
• Loreen contributed to groceries, car maintenance, a family trip to Mexico, household décor, a gas firepit in the back deck, and a washer dryer;
• He refused to allow her to buy him a $9000 fridge;
• She also paid for a kobo tablet and bought Christmas and birthday gifts for family members;
• The Royal Bank Manager recommended that he become joint owner of the bank account to facilitate cash withdrawals without her presence;
• In 2018 Jason separated from his wife and she stayed and cared for Loreen with him until November 2020;
• At that time, they realized that she required more specialized care and attention, so they secured a place for her at the Bearbrook Retirement Home;
• The family home was sold and Jason moved in with friends;
• RBC became concerned with him and stopped sending him bank statements, so he could not keep track of expenses, and he was advised he was in arrears with Bearbrook;
• He had a falling out with Bearbrook and as a result of this and Loreen’s need for memory care, she was transferred to Armstrong LTC;
• He had issues with Armstrong LTC and they would question him regarding his mother’s care;
• He was advised by Armstrong LTC that his mother was in arrears. One of their employees was able to obtain a payment directly from the bank without his authorization;
• He indicates that “In retrospect, I realize I should have been more diligent about keeping receipts for all the cash withdrawals and purchases my mother asked me to make, but I never anticipated being thrown into a situation in which I’d be required to provide such documentation”;
• He states that he could not do the accounting as he did not have the bank statements (although they were served with the application record in March 2024);
• He believes he is entitled to a credit of at least $106,500 at $1,500 per month (but the court notes that his parents did not live with him for 71 months); and
• He also faces criminal charges for fraud and his release condition prohibits him from contacting his mother.

[78] Jason submits that he was added to the joint account which then superseded the POA and he helped his mother out and used the money as she needed or for the home.

Payments permitted

[79] The court permits the following payments to be deducted from the original amount claimed by the PGT in its application.

[80] There is evidence of a payment of $1,500 per month when the parents were residing with him.

[81] A letter dated August 1, 2014 states:

We, Laurie Snelgrove and Lee Snelgrove wish and agree to give our son Jason Snelgrove the sum of $1500.00 monthly on his chasing(sic) to help with expenses as part of an agreement for living in his house, and helping with my cancer treatment. (Loreen also goes by the name Laurie Snelgrove)

[82] The court finds that Jason has accounted for and corroborated the amount of $1,500 per month for 22 months for a total of $33,000.

[83] The court accepts the one payment in the amount of $12,924 as a foreign exchange withdrawal regarding Loreen’s husband’s medical fees while in Florida which is confirmed by a Visa statement.

[84] Also, the court accepts the 2 withdrawals from the bank to the City of Ottawa on April 3, 2023 for $2,769.14 marked “LTC” even there is no receipt or documents, and another one for $2,814.14 on May 1, 2023 for LTC totalling $5,583.28. This amount will be deducted as it is a reasonable inference that those monies were for the costs of the Armstrong LLC. The amounts coincide with the cost of the long-term care home.

[85] The court will also permit the December 7, 2023 payment of $1,000 for “Christmas Money for kids”, December 11, 2023, $1,000 for “Xmas gifts” and December 18, 2023, cheque for $1,200 “Xmas and Angela’s birthday”;

[86] Although there are no receipts for these gifts, the court accepts his evidence that this money was directed to Loreen’s family members for these special occasions. This totals $3200 that will be deducted from the amount owing.

Remainder of expenses

[87] The remainder of the expenses remain uncorroborated, unconfirmed and undocumented.

[88] Jason was extensively involved in the care of his mother but as an attorney, he had a duty to keep records of his spending and ensure that her property was used for her benefit.

[89] As stated in Public Guardian and Trustee v. Cherneyko et al., 2021 ONSC 107, at para. 51, “the failure to keep any receipts for such a significant degree of expenditures evidences lack of skill, diligence and good judgement on [the attorney’s] part”. He has had plenty of time to gather his evidence and was given an adjournment to provide evidence.

[90] Jason also argues that as a joint account holder he is able to withdraw monies as he deems fit. Jason provided an online RBC pamphlet indicating that joint account holders share funds on the account and can withdraw funds.

[91] However, there is a presumption of resulting trust. That is, broadly speaking, a resulting trust arises whenever legal or equitable title to property is in one party's name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner, or to the person. See Pecore v. Pecore, 2007 SCC 17, at para. 20.

[92] In essence, this presumption also applies to joint assets between parents and their independent adult children.

[93] As stated above, Jason as a joint account holder does not have free rein to spend Loreen’s money as he wishes. As a fiduciary, he is in a fiduciary position and must be responsible to her for the accounting.

[94] The court finds that Jason has failed to account and provide confirmation for $247,284.22 of Loreen’s property. His failure to maintain receipts and proper accounting has put him in a position in this proceeding that he is unable to account for these expenditures nor has he demonstrated that these expenses benefited her.

[95] The court recognizes that any payment schedule at this time will place a financial burden on Jason as he is working for minimum wage.

[96] Nevertheless, Jason is responsible and he owes a total of $247,284.22 the PGT. A payment plan can be entered into by the parties.

[97] Given the success of the PGT and considering the provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and having reviewed the bill of costs filed, the court orders costs in the amount of $5,000.00 in favour of the PGT.

Justice A. Doyle Date: December 10, 2024