Court File and Parties

Court File No.: CV-24-00718611-00ES Date: 2025-08-18 Ontario Superior Court of Justice

In the Matter of the Guardianship of Carl Joseph Bennett

Between:

Suferlyn Adassa Bennett, Applicant

– and –

Donnovan Bennett, personally and in his capacity as Power of Attorney for Property and Personal Care for Carl Joseph Bennett, Carl Joseph Bennett, and The Public Guardian and Trustee, Respondents

Counsel:

• Kavina P. Nagrani and Victoria Holland for the Applicant
• K. Gordon for Donnovan Bennett
• Brad Wiseman, Section 3 counsel for Carl Joseph Bennett

Heard: July 30, 2025

C. Gilmore, J.

Introduction

[1] The Applicant, Suferlyn Adassa Bennett ("Adassa"), is the wife of the Respondent Carl Joseph Bennett ("Carl"). As all parties in this matter have the last name of "Bennett" I will refer to them, respectfully, by their first names. This proceeding concerns a dispute as to who should be the substitute decision-maker ("SDM") for Carl.

[2] Adassa seeks a declaration that Powers of Attorney for Property and Personal Care signed by Carl on September 27, 2023 ("the 2023 POAs") are invalid on the grounds of undue influence and/or suspicious circumstances and that Carl lacked capacity when he signed them. Alternatively, Adassa seeks a declaration that the parties' son, the Respondent Donnovan Bennett ("Donnovan"), has breached his fiduciary duties under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 ("the SDA") and his authority as Carl's POA should be terminated.

[3] In the event that the 2023 POAs are set aside or Donnovan's authority as POA is terminated, Adassa seeks to be named Carl's Guardian of Property and the Person. She has submitted a Management and Guardianship Plan in support of her request and the Public Guardian and Trustee ("the PGT") has been put on notice of this hearing and provided comments with regard to the Plans.

[4] Donnovan opposes the within Application and has submitted a Management Plan in the event the 2023 POAs are set aside on the grounds of incapacity. His position is that the 2023 POAs were validly executed and granted and that his mother should not be appointed as his father's Guardian of Property and the Person. Donnovan denies that he breached his fiduciary duties as Attorney for Property and Personal Care and submits that he is carrying out his father's clearly stated wishes.

[5] Donnovan submits that his parents have been estranged for 20 years and that, as a result, his mother has not and will not prioritize his father's best interests. He alleges that his mother and sister have financially abused his father and that in the past, his mother failed to administer medication to his father in the hope that he would pass away and she would inherit his estate. Finally, he opposes his mother's plan to return his father to Jamaica on the grounds that his father would not receive the same quality of medical care in Jamaica as he does in Canada and that the property they plan to retire to has in fact been sold.

[6] For the reasons set out below, the Application is granted. If I am wrong with respect to the evidence supporting suspicious circumstances or a lack of capacity during the execution of the 2023 POAs, there is ample evidence that Donnovan breached his fiduciary duties as POA as set out in the SDA. Because Carl is not capable of executing a new POA, Adassa shall be appointed as his Guardian of Property and the Person.

Factual Background

[7] Carl and Adassa have been married for 49 years. They have three children: Stephan Bennett ("Stephan"), Makeshia Bennett ("Makeshia"), and Donnovan. Carl also has a child from a previous relationship, namely Roan Bennett ("Roan"). Carl is 70 years old and a retired nurse. Adassa is 71 years old and a retired Personal Support Worker.

[8] Since 2018, Adassa and Carl have spent time in both Toronto and Jamaica, often residing in each place for six months of the year. Since the Toronto apartment was very small, Carl often lived with his daughter Makeshia when they spent time in Toronto.

[9] Donnovan alleges that Carl and Adassa are estranged and have been separated for two decades. He relies on the unsworn statements of his grandmother and aunt who corroborate this assertion. Adassa denies this and submits that she and Carl are very close and although they may not always be in Jamaica or Toronto at the same time, they spend significant time together.

[10] Beryl Scarlett ("Beryl") is Carl's sister who resides in Scarborough, Ontario. Ambrozine Espeut ("Ambrozine") is Carl and Beryl's mother. She also resides in Scarborough, Ontario. Abeina Reid ("Abeina") is Donnovan's sister-in-law. She resides in Brantford, Ontario. Beryl, Ambrozine, and Abeina have all provided unsworn statements in support of Donnovan's position. When shown the unsworn statements of Ambrozine and Abeina, Carl denied that they were true and became upset.

[11] Donnovan removed his father, who was living with Makeshia, from her residence on September 21, 2023. Donnovan had not seen his father since July 2021, but claimed that his father texted him and asked to be removed because the living conditions at Makeshia's residence were not safe. Donnovan has never produced this text message. Further, Adassa's evidence was that Carl could not have sent a text as he did not have a SIM card that worked in Canada. In his affidavit sworn July 27, 2025, Donnovan deposed that his father called him on September 20, 2023, and claimed he was living in a cold dark basement and that he was afraid. This is inconsistent with Donnovan's earlier evidence that his father texted him about his living conditions. Again, Adassa denies that the call took place as Carl did not have a phone that worked in Canada.

[12] According to Makeshia and Adassa, Donnovan forcibly removed Carl from Makeshia's home on September 21, 2023. Further, despite his father's living conditions being the reason for the removal, Donnovan admitted that he never actually saw where his father was living in Makeshia's home.

[13] The relationship between Donnovan and his father, according to Adassa, was strained prior to September 2023. Donnovan moved to Brantford in 2013 and his father did not visit him. According to Adassa, Carl was frustrated with Donnovan because he did not visit his parents unless he wanted money. Carl was also frustrated when Donnovan did not visit him after he had surgery in September 2014. Moreover, Carl had never met Donnovan's fiancée until she arrived at Makeshia's home with Donnovan on September 21, 2023, for the removal.

[14] Prior to the September 2023 incident, Adassa did not have a close relationship with Donnovan, but they spoke occasionally. Donnovan denies that he was distanced from his parents and insists that he had a close relationship with his father. There is no evidence that this was the case other than some audio recordings of discussions between Donnovan and his father. Unfortunately, the Patwa accent is so strong, it is hard to decipher what is being said in those conversations. Further, it is unclear that Carl knew he was being recorded.

[15] After Carl was removed from Makeshia's home, the police were called by Donnovan to retrieve Carl's belongings. The attending police officers viewed Carl's living arrangements and noted that they were warm and private with a bed and television. This does not accord with Carl's alleged statement that he was living in a cold and dark basement.

[16] On September 27, 2023, Donnovan took Carl to sign the 2023 POAs. Donnovan's evidence is that he and his father met with Ms. Makeda Bramwell, a solicitor, for an hour and then his father further met with Ms. Bramwell alone for an hour. Donnovan allegedly gave Ms. Bramwell Carl's health card and driver's licence as identification. However, according to Adassa, Carl does not have a driver's licence.

[17] On October 7, 2023, Carl signed a Jamaican Power of Attorney for Property in favour of his sister. After Donnovan's removal of his father from Makeshia's home in September 2023, Adassa, Makeshia, and Stephan did not see Carl for 358 days. A court order for access was required before they were permitted to visit Carl.

[18] After Donnovan removed his father from Makeshia and Adassa's care in September 2023, he resided with Donnovan in Brantford for a period of time. Donnovan then moved his father to Riverview Terrace, a retirement home, in Brantford. On April 10, 2025, Carl was moved to St. Joseph's Hospital in Hamilton where he resides in the Alternate Care Unit ("the ACU"). Donnovan did not consult with Adassa or Makeshia in relation to any of the abovementioned moves.

[19] During the time that Carl was living with Donnovan in Brantford, Donnovan denied Makeshia and Adassa access to Carl. Adassa was able to speak with Carl by phone only once on October 22, 2023. After that date, she was never able to get through to Carl by phone. Her attempts to reach Donnovan to receive information about Carl were also rebuffed.

[20] In December 2023, Makeshia and Adassa travelled to Brantford and sought the assistance of the police to see Carl at Donnovan's home. Donnovan refused to allow the visit and the police refused to intervene given Donnovan's status as POA. After making seven monthly wellness checks, as requested by Adassa and Makeshia, the police refused to make further wellness checks because of Donnovan's status as SDM. The police advised Adassa that Donnovan had requested that Adassa be charged with harassment if she continued to request wellness checks.

[21] In December 2023, Adassa hired counsel who wrote to Donnovan requesting Carl's return to Makeshia's home and a return of $12,801 that had been removed from Carl and Adassa's joint account.

[22] Donnovan claimed that he was not preventing his father from talking to or visiting his family, but he would not force his father to do so.

[23] In the police report dated September 21, 2023 (relating to the removal of Carl by Donnovan), Donnovan told police that his father had health problems and could be suffering from memory loss.

[24] Donnovan also contacted police on September 24, 2023, requesting assistance in obtaining his father's belongings and identification documents. Adassa refused to provide Carl's passport to the police, and the police noted that it was probably best for Carl at that time that the passport remain in Adassa's possession. Adassa had expressed a fear that Donnovan would take financial advantage of his father.

[25] On October 18, 2023, the police spoke to all the parties. On that same day, Donnovan advised his mother and sister that Carl had a new phone number. Makeshia and Adassa tried calling the number at least ten times but were unable to get through except for on one occasion on October 22, 2023. Adassa asked Donnovan for help contacting Carl, but he would not assist.

[26] In February 2024, Donnovan's counsel wrote to Adassa's counsel and advised that Donnovan was not denying Adassa and Makeshia access to Carl, and that Carl had access to his family by cellphone. I note that Adassa's evidence is that Carl's cellphone was disconnected from service in October 2023. Donnovan's counsel alleged that Carl was the victim of financial, physical and emotional abuse from Adassa and Makeshia and that he would not force his father to communicate with them.

[27] Donnovan's evidence was that the Brantford police attended his home numerous times for wellness checks. The police determined that Carl had not been kidnapped and was content living with Donnovan.

[28] After ongoing requests for wellness checks and no response from Donnovan regarding access to or communication with Carl, Adassa brought a motion for access. On September 11, 2024, Dietrich J. ordered that Adassa, Makeshia and Stephan have unfettered and unsupervised access to Carl and that Donnovan was not to interfere with that access. Donnovan's position at the motion was that Adessa and Makeshia should have only supervised access. Justice Dietrich did not agree.

[29] Dietrich J.'s Order required that Donnovan was to immediately provide Carl's location and a working telephone number for him. The PGT was requested to appoint Section 3 counsel for Carl, who was to arrange a capacity assessment. Only at that motion did Adassa learn that Carl was living at Riverview Terrace in Brantford. Dietrich J. also ordered that the parties were not to discuss the within Application or any financial issues with Carl.

[30] Donnovan alleges that Adassa was in breach of Dietrich J.'s order by coaching Carl on what to say to Mr. Wiseman, the Section 3 counsel. None of Mr. Wiseman's letters indicate a concern that Carl was being coached by Adassa.

[31] In determining costs of that motion, Dietrich J. ordered that Donnovan pay $11,000 in costs and that Carl pay $3,500 in costs. These costs have not been paid. Adassa's counsel submitted that if Adassa is appointed Carl's Guardian of Property, she would not pursue the $3,500 costs award in her favour unless Carl has sufficient assets to make the payment. Donnovan claims that he does not understand why costs were ordered against him, but he has not appealed the costs order. The costs ordered to be paid by Donnovan remain unpaid.

[32] After the September 2024 motion, Adassa arranged for visits with Carl at Riverview Terrace and noted that video and audio equipment had been installed in Carl's room. Adassa's counsel wrote to Donnovan, taking the position that the surveillance equipment did not accord with Dietrich J.'s order for unsupervised access. Adassa's counsel also stated that such surveillance breached Carl's right to privacy. Donnovan was requested to remove the equipment by October 16, 2024. Donnovan's counsel at that time, Ms. Sylvia Lafontaine, responded that the camera had been placed in Carl's room solely for "security, companionship and to assist with medication reminder/disbursement only."

[33] Donnovan's evidence was the cameras were required for Carl's safety, given his propensity to wander and become agitated or difficult to manage. Donnovan's evidence was that many other residents had cameras installed in their rooms for safety reasons. His position was that Adassa wanted the cameras removed so she could talk to Carl about the Application and the 2023 POAs even though Dietrich J.'s order prohibited such discussions.

[34] Adassa's counsel responded to Ms. Lafontaine on November 1, 2024, reminding her that the SDA strictly prohibited the use of monitoring devices by SDMs other than where it was to prevent serious bodily harm. Counsel again requested the immediate removal of the cameras. However, in a subsequent affidavit, Donnovan's counsel used video clips from the surveillance cameras to bolster his negative comments about his sister and mother, whom he said were breaching Dietrich J.'s order during visits with Carl.

[35] Since counsel for Adassa had sent two cease and desist requests to Ms. Lafontaine and the cameras were still present, Adassa's counsel requested an urgent motion date. Adassa's counsel offered that if the cameras were removed by December 5, 2024, and partial indemnity costs of $3,380 were paid, the motion could be avoided. The cameras were not removed.

[36] Adassa brought a motion for contempt on January 28, 2025. The contempt related to (1) Donnovan's ongoing surveillance of Adassa and other family members when they visited Carl, (2) his failure to provide a working telephone number for Carl, and (3) Donnovan's failure to pay the costs ordered by Dietrich J.

[37] At the January 28, 2025 hearing, Donnovan requested an adjournment as the counsel he hired to assist him had been suspended by the Law Society of Ontario. He submitted he was at a disadvantage given the serious issues raised and the fact that he had not been able to file responding material. I permitted the adjournment but was concerned about further delays in this matter. As such, I adjourned the contempt motion and set the hearing of the main application and the contempt motion for July 30, 2025. A timetable for the filing of materials was also set.

[38] Other orders made on January 28, 2025 included that Donnovan was to remove the cameras in Carl's room, that Carl was to be assessed for his capacity to make personal care and property decisions, that the costs of the assessment were to be paid from Carl's assets (not by Adassa, as Donnovan asserts; Adassa or other family members were to pay for the assessment only if Carl had insufficient assets), that Adassa and her family members were to have unsupervised access to Carl, that Carl was to be given a phone and the number was to be provided to all parties including Mr. Wiseman, and that no parties were to interfere with Mr. Wiseman's meetings with Carl.

[39] On January 31, 2025, Makeshia and Adassa arranged to pick up Carl so they could go out for dinner for Adassa's birthday. Donnovan tried to prevent the outing, claiming it was too cold for Carl to go outside. The police were called and reviewed the Court Order from September 2024, which gave Adassa and Makeshia unsupervised access to Carl. The police permitted Carl to be taken out for dinner. Carl was agitated and upset about this incident.

[40] Donnovan deposed that he visits his father five times a week, cuts his hair, makes sure he has proper medical care, liaises with his medical teams, and assists in keeping Carl calm. Donnovan complains that Adassa does not care for Carl, nor does she consult with Donnovan about Carl's care.

[41] Adassa complains that Donnovan does not respond to her calls or enquiries about Carl's medical needs or care. She and Makeshia have visited Carl on 90 separate occasions since the January 2025 motion.

[42] Adassa wants Carl to come back and live with her in Toronto with a plan to eventually move Carl to Jamaica. Donnovan does not view this plan as realistic or beneficial for his father. Donnovan wants his father to go into long term care (which Carl resists) and protests that Jamaica does have suitable medical care available. Donnovan has not taken Carl back to his home in Brantford, leaving him in a hospital arrangement for patients who have nowhere else to go.

Evidence Related to Capacity

[43] Adassa deposed that in January 2023, Carl had become confused about where he was and what time of year it was. On February 2, 2023, while in Jamaica, Carl had a stroke. He was taken to the hospital and then discharged into the care of his family doctor, Dr. Barton. Dr. Barton ordered an MRI and then diagnosed Carl with dementia on February 18, 2023. Dr. Barton noted in his report that Carl's memory was "rapidly deteriorating" and that he had a frontal lobe tumour. Carl was diagnosed with chronic microvascular disease, a condition which can lead to neurological complications.

[44] Adassa noted that after the stroke, Carl was less independent, needed help taking medication and receiving reminders about daily living tasks. Carl and Adassa planned to return to Toronto in September 2023, as per their annual routine. Adassa deposed that Carl was confused about where they were going and why. According to Adassa, Carl's condition continued to decline. She was very concerned when she discovered that Carl had signed Powers of Attorney on September 21, 2023. She seriously doubted that Carl would be able to understand the documents.

[45] In the police report dated October 18, 2023, Donnovan advised police that Carl had round-the-clock care from a PSW because of his medical issues and dementia.

[46] During a wellness check on October 20, 2023, the police noted that Carl had written the names of his family members on the wall so he could remember them. That police report also stated that Carl told the police he wanted to leave Donnovan's residence. With Makeshia and Adassa waiting at the residence, the officers attempted to initiate a hug between Carl, Makeshia and Adassa, but Donnovan would not allow it.

[47] During a wellness check on December 12, 2023, Carl told police that he wanted to leave Donnovan's home. The police noted that the longer they spoke with Carl, the more he began to show signs of cognitive confusion.

[48] In December 2023 Adassa's counsel wrote to Donnovan expressing concerns about Carl's capacity to sign a POA and demanding that Carl be returned to his family. On February 18, 2024, Donnovan's counsel (the same counsel who had prepared the 2023 POAs) responded and advised that Carl has the requisite capacity to sign a POA and that Donnovan has kept all receipts and documented all expenditures for his father.

[49] In December 2023, Donnovan arranged for his father to undergo a behavioural assessment. That assessment reported that Carl was subject to confusion, disorientation, wandering, exit seeking, withdrawal from social activities and occasionally repetitive behaviours and refusals of medication. Carl was also referred to a memory loss specialist.

[50] In a Local Health Integration Network ("LHIN") health assessment, dated December 18, 2023, Carl's medical diagnosis was noted as dementia, hypertension, gastritis, previous stroke and renal cell carcinoma. His status was noted as "incapable."

[51] In January 2024, Carl's physician Dr. Butt wrote that Carl required nursing home care as he was "medically incompetent and unable to take care of himself."

[52] In February 2024, Carl was assessed for admission to long term care. He was deemed eligible for such care. In that report Carl was noted as being severely confused, engaged in exit seeking, and requiring total care. In his response to questions by the care coordinator, Carl could not remember the date, month, year or season, his home address, his location, or his year of birth. Carl told the care coordinator that he had no health problems. Even when prompted, he could not recall past incidents where he had wandered away from Donnovan's home and became lost. He was adamant that he did not want or need long term care. He told the care coordinator that he would be leaving in three weeks to live with his daughter. He was further noted as being "unable to understand the information provided to him or retain the information provided to him regarding long term care." Overall, Carl was found to be incapable of deciding whether he should go into long term care or not.

[53] In May 2024, Carl's social worker, Sandra Khounborinh, wrote that she had been assisting Carl with his transition to the retirement home. She stated that given his dementia diagnosis, any changes to his daily activities would be detrimental and could cause him mental distress.

[54] Carl met with Section 3 counsel on January 21, 2025. Mr. Wiseman showed Carl the 2023 POAs. Carl denied having signed them or having any knowledge of Ms. Bramwell, the lawyer who prepared the 2023 POAs.

[55] By April 2025, Carl had not improved. A report from Dr. Campbell of LHIN stated that Carl suffered from moderate-to-advanced mixed dementia and frailty. The prognosis was that of continued deterioration. Carl required assistance with all daily living tasks.

[56] On March 12, 2025, Certified Capacity Assessor Dan Silver assessed Carl with respect to his capacity to make property and personal care decisions. Mr. Silver interviewed Carl while he was living at Riverview Terrace. Mr. Silver noted that during the assessment, Carl presented disorganized thinking, short term memory deficit, and an absence of insight into his limitations. Mr. Silver noted that after reviewing the medical reports, it appeared that Carl had been suffering a "significant impairment of capacity for more than 18 months."

[57] Mr. Silver noted that Carl insisted he was able to care for his own hygiene, cook for himself occasionally, and walk on his own. Carl described himself as fully independent. This statement was entirely untrue, as Carl requires assistance with all daily living tasks. Additionally, Carl did not know that the rollator in his room belonged to him.

[58] During his interview with Mr. Silver, Carl was unable to properly identify his sources of income, the amount of his monthly income, or his expenses. He also did not demonstrate an understanding of the concept of debt.

[59] After a thorough review of Carl's circumstances, Mr. Silver determined that Carl could not manage his own property or personal care.

The Financial Evidence

[60] According to Adassa, after Carl retired and the couple began travelling between Jamaica and Canada frequently, they added Makeshia to their accounts because they trusted her. They did not trust Donnovan to assist them with financial matters; Donnovan regularly asked his parents for money which led to frustration and a degree of distancing between Donnovan and his parents.

[61] In 2003, Adassa lent Donnovan $6,600 so he could pay off his debts. Donnovan signed a promissory note dated December 4, 2003. Adassa lent Donnovan another $5,000 in October 2005. Donnovan did not always repay the full amount of the loans or make the required monthly payments.

[62] Carl and Adassa have a joint account at Scotiabank which they use for regular expenses. Makeshia was added to the account for convenience, but the funds in the account are not hers. On September 28, 2023, Donnovan removed all the funds from the joint account using the Power of Attorney documents. The account has since been frozen.

[63] If Adassa is appointed Carl's Guardian, it is her intention to go back to Jamaica with Carl and care for him there. When required to return to Toronto, Adassa would arrange for full time care for Carl.

[64] On March 3, 2025, Adassa's counsel wrote to Donnovan (who was not represented at the time) and requested that Donnovan provide Carl's bank account statements and other financial information so that a proper Management Plan could be prepared. Donnovan did not respond. Donnovan has never provided a proper accounting of Carl's expenses, nor has he explained how the $12,000 that were removed from the joint account were used.

[65] When reading Donnovan's Management Plan, Adassa was concerned to learn that Carl has credit card debt and two loans. According to Adassa, Carl never had debt when he was living with her.

[66] Donnovan claims that Adassa's Management Plan misrepresents Carl's assets because it does not include his music equipment, jewellery, watch collection or any of his Jamaican properties. Further, Donnovan alleges that Adassa does not account for the cost of Carl's medical care in Jamaica. Health care in Jamaica is privatized such that all medical care and doctor's visits must be paid for.

[67] Donnovan submits that the medical reports he filed show that he has been actively engaged in his father's medical care and that he is "appreciated by staff and the medical team as attentive to Carl's needs."

[68] Donnovan's Management Plan includes a plan for Carl to live in a long-term care home. Donnovan is aware of the cost of such care and his Management Plan takes this cost into account, as well as other incidental expenses such as nail and dental care. Donnovan is concerned that the medical care in Jamaica will cost more than in Canada and will not be sufficient given Carl's significant needs. Further, he submits that the trip to Jamaica will cause serious distress to Carl.

[69] Donnovan complains that Adassa has not provided information about Carl's assets in Jamaica (which Donnovan values at over $2M) and that when he came into Donnovan's care, Carl owed taxes of $2,500. Further, Carl's line of credit had been maxed out at $10,000. Donnovan submits that the funds in Carl and Adassa's joint account came solely from Carl's income without any contribution from Adassa and that Adassa is seeking guardianship of Carl solely for financial gain.

[70] Adessa denies all of these allegations and submits that any deficits in the accuracy of her Management Plan are attributable to Donnovan's failure to provide financial information when requested.

Interviews Conducted by Section 3 Counsel

[71] After his appointment as Section 3 counsel, Mr. Wiseman first attempted to visit Carl on January 9, 2025 at Riverview Terrace retirement home. The staff advised Mr. Wiseman that Carl did not want to meet him. Mr. Wiseman went to Carl's room to explain who he was and why he was there, hoping to convince Carl to meet with him. Carl began yelling at Mr. Wiseman in Jamaican Patwa and demanded that Mr. Wiseman leave. He refused to accept Mr. Wiseman's business card. As such, Mr. Wiseman was not able to get any information or any idea of Carl's wishes or preferences during this meeting.

[72] Mr. Wiseman visited Carl again on January 20, 2025. Carl was much more agreeable. Just before Mr. Wiseman arrived, Carl had been visiting with his wife and Makeshia in the activities room. Mr. Wiseman met with Carl alone. Carl was unaware of the within legal proceedings (although he had been served with the Application) and Mr. Wiseman explained the basics of the dispute between Adassa and Donnovan.

[73] When asked who he would prefer to handle his money and personal care decisions, he advised Mr. Wiseman that he would prefer Adassa, his wife of many years with whom he is very close, to make those decisions. Carl denied that he and Adassa were separated. He told Mr. Wiseman that he is not close to Donnovan and does not see him often. Mr. Wiseman went on to tell Carl that Donnovan's court materials allege that Carl has been in a relationship with another woman for 20 years. Carl denied the allegation and became upset at that point. Mr. Wiseman decided to end the interview as Carl became quite agitated.

[74] Mr. Wiseman met with Carl again on April 16, 2025. His report indicated that Carl was calm. Carl told Mr. Wiseman that he did not want to be transferred to long term care. He further advised Mr. Wiseman that he wanted to move back to Toronto and live with Adassa.

The Issues

A. Was Carl Capable of Granting the 2023 POAs?

[75] According to s. 8(1) of the SDA, an individual is capable of granting a Power of Attorney if the following criteria are met:

a) The individual is aware of the nature and extent of their property, including its approximate value;

b) The individual recognizes obligations owed to their dependants;

c) The individual understands that the attorney will have authority to act on their behalf in relation to property matters, to the same extent as the individual could if capable, except for making a will, and subject to any limitations set out in the power of attorney document;

d) The individual understands that the attorney is required to account for their management of the individual's property;

e) The individual understands that they may revoke the continuing power of attorney, provided they have the capacity to do so;

f) The individual appreciates that mismanagement by the attorney may result in a decline in the value of their property; and

g) The individual appreciates the risk that the authority granted to the attorney could be misused.

[76] Carl is presumed to have capacity when he signed the 2023 POAs in September 2023. It is Adassa's burden to rebut the presumption, proving he did not have such capacity.

[77] In determining whether Carl had capacity at the relevant time, the medical and other evidence from the time before and shortly after the execution of the 2023 POAs must be examined.

[78] As early as January 2023, Adassa noticed that Carl was increasingly confused. In February 2023, Carl's long-time physician, Dr. Barton, noted that Carl had "rapid memory deterioration."

[79] On October 18, 2023, Donnovan told police that his father required around-the-clock care because he had dementia and other medical issues.

[80] On October 20, 2023, police noted that Carl had written his family members' names on the wall so he could remember them.

[81] Medical reports from October 27, 2023 indicate that Carl had experienced significant cognitive impairment for a period exceeding 18 months.

[82] On December 12, 2023, police noted that the more they spoke to Carl, the more apparent his cognitive impairment became.

[83] A LHIN assessment dated December 18, 2023 assessed Carl as "incapable."

[84] Donnovan conceded that his father was medically incapable by January 4, 2024, as per the diagnosis of Dr. Butt. However, Donnovan claims that his father was able to "meet the capacity test" to execute the 2023 POAs. It is unclear what this test was and who administered it. The notes from Ms. Bramwell's file (who presumably conducted the test) were never produced to the Court.

[85] In his affidavit sworn November 29, 2024, Donnovan described his father as a "person with dementia" when he removed Carl from Makeshia's home on September 21, 2023.

[86] Carl's condition continued to decline throughout 2024 and 2025. By the time he was assessed by Mr. Silver, Carl was unable to respond to questions about his finances and insisted that he was medically fine. Carl would not admit that he needed assistance with even the most basic personal care tasks.

[87] There is no evidence of Carl's condition on the day he signed the 2023 POAs. Ms. Bramwell, who drafted the POAs, did not provide an affidavit in this proceeding nor was she examined. I infer, however, based on the evidence available that Carl's condition had been in decline since at least January 2023. In October 2023, only weeks after the execution of the 2023 POAs, Donnovan told police that his father had dementia and required around-the-clock care.

[88] Each contact with police and the medical system thereafter confirmed concerns with Carl's cognitive abilities and his decline. While it is true that there is no specific medical evidence confirming Carl's condition on September 27, 2023, the factors set out in Rudin-Brown et al. v. Brown AND Brown v. Rudin-Brown et al., 2021 ONSC 3366, 155 O.R. (3d) 750 at para. 91 and Royal Trust Corporation of Canada v. Saunders at para. 78 are important to consider with respect to Carl's vulnerability at the relevant time. The five factors set out in the abovementioned cases may be summarized as follows:

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).

[89] The factors in Rudin-Brown and Royal Trust have been applied to factual circumstances surrounding the execution of the 2023 POAs. I will review the factors in turn, adapting them to the factual circumstances of this case:

a. Extent of physical and mental impairment.

While medical evidence of Carl's potential physical and mental impairment is not available for the day of the execution of the POAs, it is important to recall Dr. Barton's February 2023 assessment, which stated that Carl was experiencing rapid memory deterioration. This appears to be a correct diagnosis given that by January 2024, Donnovan conceded that his father was completely incapable. I infer, therefore, that Carl's memory deterioration was ongoing throughout 2023, including during the time the 2023 POAs were signed. Indeed, it is likely that the deterioration would have advanced significantly by then, as Dr. Barton described Carl's memory deterioration as being "rapid" many months earlier. In the month following the execution of the 2023 POAs, Donnovan himself described his father as having dementia and requiring round-the-clock care. I note that in his interview with Mr. Wiseman on January 20, 2025, Carl denied having any knowledge of the 2023 POAs, including meeting Ms. Bramwell, the drafting solicitor.

b. Whether the 2023 POAs constitute a significant change from former POAs.

It is conceded that Carl did not have any previous POAs. This is likely because until September 21, 2023, his wife and daughter had been tending to his care needs. I find that although there is no reference point here because of the lack of prior POAs, it is important to note that Donnovan had never previously been involved in his father's care or finances.

c. Whether the 2023 POAs make sense with respect to Carl's best interests.

As mentioned above and elsewhere in these reasons, Donnovan had been partially estranged from his parents and certainly his father for several years before 2023, mostly due to money related issues. Adassa specifically deposed that she and Carl did not trust Donnovan with money matters which is why they entrusted Makeshia with their financial affairs when they were outside of Canada. Although Donnovan claims he was close to his father, Donnovan had been living with his fiancée for several years and the first time Carl or Adassa met her was on September 21, 2023. Donnovan was insistent on "saving" his father from the rest of the family based on one alleged call or text (it is unclear which) without any consultation or discussion. He removed Carl from his home against the wishes of his caregivers and spouse. Naming Donnovan as Carl's POA for Property and Personal Care a mere six days after Donnovan had whisked him away from his home in a vulnerable condition does not align with Carl's best interests. Carl had never previously placed Donnovan in a position of trust with respect to any aspect of his personal or financial affairs.

d. The factual circumstances surrounding the signing of the POAs and whether Donnovan was instrumental in their execution.

Donnovan's own evidence is that he took his father to Ms. Bramwell's office and spent an hour with his father and Ms. Bramwell before Ms. Bramwell asked to interview Carl alone. Ms. Bramwell was allegedly presented with Carl's driver's licence as identification. However, Carl does not have a driver's licence. Additionally, there are concerns about Donnovan's significant presence during the scheduling and preparation of the 2023 POAs. There is no evidence before the Court as to how Ms. Bramwell was able to assess Carl's capacity. At the relevant time, Carl was dependent on Donnovan for shelter and care. On the day the 2023 POAs were signed, Donnovan attended at the bank with his father and withdrew all of the money in his accounts. In short, it is clear that Donnovan's presence and influence with respect to the 2023 POAs was overwhelming. Of note is that in February 2024, Ms. Bramwell wrote to Adassa's counsel as Donnovan's counsel, denying allegations of kidnapping and defending her assessment of Carl's capacity at the time the 2023 POAs were signed. It appears that Ms. Bramwell acted for both Donnovan and Carl simultaneously, thereby raising concerns related to a significant conflict of interest.

[90] In summary, I find that there is evidence to support the factors in Rudin-Brown and Royal Trust that the 2023 Powers of Attorney were executed under suspicious circumstances, including suspicious circumstances of capacity and undue influence. Donnovan should be removed as Carl's POA for Property and Personal Care.

[91] However, if I am wrong and there is insufficient evidence to rebut the presumption of capacity or support the conclusion of suspicious circumstances including undue influence, I would nevertheless remove Donnovan as POA on the grounds of his breaches of fiduciary duty.

[92] As an Attorney for Personal Care, Donnovan was bound by ss. 66(4), (5), (6), (7) and (10) of the SDA. These subsections require that Donnovan take into consideration Carl's wishes if they can be ascertained, encourage Carl to participate in decisions made on his behalf where possible, foster regular personal contact between Carl and supportive family members and friends, consult with family members, and not use restraint or monitoring devices unless such devices are necessary to prevent bodily harm.

[93] I have set out examples of Donnovan's failure to comply with the relevant provisions of the SDA below:

a. The removal of Carl from his home by Donnovan on September 21, 2021 was carried out in a callous manner, without consultation or discussion. Donnovan reacted to one alleged communication from his father without further investigation. Had he taken the time to visit his father's living quarters he would have found, as the police did upon inspection, that his father's living area was warm and comfortable with a bed and television. I find that the entire premise for Carl's removal was a false one and a front for Donnovan's agenda.

b. Donnovan has been adamant throughout this process that moving Carl out of Canada would be detrimental to his health as any move is very stressful for Carl. Yet, without consultation with other family members, Donnovan has moved Carl three times in under two years.

c. Donnovan refused Adassa or Makeshia access to Carl for over a year. A motion was required in September 2024 before any physical access was permitted. Even at the motion, Donnovan insisted on supervised access. Donnovan submits that he did not interfere with access because Carl was always available by phone. This is patently untrue. Adassa was able to call Carl on only one occasion. Moreover, substituting phone for physical access was not reasonable in the circumstances given Carl's dementia.

d. While Carl told police in October 2023 that he was content residing with Donnovan, by December 2023, he told them that he wanted to leave. Additionally, the police noted that Carl became both confused and angry during their visit.

e. At one point during a wellness visit, police suggested that Carl come outside for a hug with Adassa and Makeshia. Donnovan refused to permit this.

f. After access was granted to Carl by Adassa and their other children in September 2024, Donnovan installed security cameras in Carl's room at Riverview Terrace. Adassa's counsel wrote on two occasions requesting that the cameras be removed. Donnovan did not remove the cameras until after my January 28, 2025 order. While Donnovan claimed that the cameras were being used for Carl's safety and care, he did not hesitate to use video clips from visits with Carl by family members to bolster his case.

g. Even after the Order was made for "unfettered" access, Donnovan made things difficult. For example, when Adassa and Makeshia drove to Brantford to take Carl out for a birthday dinner on notice to Donnovan, Donnovan called the police to prevent the visit, claiming the weather was too cold. Carl was distraught.

h. Donnovan insists that Carl should be admitted to long term care. Carl does not want to go into long term care, which was confirmed by his Section 3 counsel. Carl remains at the ALC unit at St. Josephs's Hospital where he has been since April 11, 2025, following an emotional outburst where he refused to be moved to long term care. Donnovan will not entertain any plan that would allow his father to return to his home in Jamaica or be cared for full time by Adassa, Makeshia, and other family members yet is content to leave him in hospital without any concrete plan.

i. Carl has expressed to Section 3 counsel on several occasions that he wants to be with Adassa and wants her to be his SDM. Donnovan claims that Adassa has manipulated these responses from Carl. There is no evidence of this. In any event, it is not surprising that Carl would want to be with his wife of 49 years.

j. Donnovan has never consulted with Adassa, Makeshia or Stephan with respect to Carl's care. On the contrary, Donnovan has made only unilateral decisions since September 2023, including decisions to alienate his father from the rest of his family for a year – until he was forced to allow access by way of a court order – as well as place his father at Riverview Terrace and then the hospital. I do not accept Donnovan's position that he would not enforce visits if his father did not want them. Everyone agrees that by January 2024, Carl was incapable. Allowing Carl alone to determine who he wanted to see or not see was unrealistic.

[94] Donnovan has also breached his fiduciary duties as an Attorney for Property Pursuant to ss. 32 and 37 of the SDA. These sections relate to duties of a Guardian of Property but are adopted with respect to a Power of Attorney's fiduciary duties in s. 38 of the SDA. Donnovan failed to provide transparency or any proper accounting. He has provided lists of expenses without corroboration or vouchers. Information about Carl's financial situation contained in Donnovan's Management Plan came as a surprise to Adassa.

[95] Pursuant to s. 37(1), a Guardian of Property or Attorney for Property must make expenditures from the incapable person's property that are reasonably necessary for their support, education and care, that satisfy their legal obligations, and provide for the support of their dependants.

[96] Donnovan did not use Carl's assets to pay for a Capacity Assessment as I had ordered (Carl paid only $260 towards the assessment, and Makeshia had to pay for the rest). Additionally, he has used Carl's assets to pay only a portion of Mr. Wiseman's fees. Donnovan has never enquired as to whether Adassa requires funds from Carl as she is his dependant. Rather, Donnovan gave his father money to go to the casino while failing to pay the costs order of $3,500 awarded to Adassa. Carl now has debt he did not have before he was removed from his home in September 2023.

[97] Carl's living expenses while he was living with Adassa were modest. The cost of the retirement home and the PSW care hired by Donnovan was sizeable. Adassa is a trained PSW and can care for Carl without incurring significant expense.

[98] Donnovan has insisted that he never denied access to his father by family members and that his father was always available by phone. This is untrue. The evidence of Adassa is that she was never able to reach Carl by phone, Carl's phone did not have a Canadian SIM card, and that when she tried to reach Donnovan to obtain information about Carl, he either did not respond or told her not to bother him. In any event, I infer that because of Carl's significant confusion and dementia, phone calls to Carl would not have been an efficient manner of communication.

[99] The evidence in the record is that Donnovan is unemployed and has no assets. While he insists that his father was being financially abused by his mother and sister, there is clear evidence that Carl's financial position now is much worse than it was when he was removed by Donnovan in September 2023. There is no evidence that Adassa was engaged in the financial abuse that Donnovan alleges. Rather, the opposite appears to be the case. On September 28, 2023, Donnovan removed $12,000 from his father's account. According to Donnovan's Management Plan, his father now has $900 in one bank account and debts of over $12,000, credit card debt, CRA debt, plus the costs award owing to Adassa. Donnovan provided information to Mr. Silver about Carl's financial circumstances but has never provided any information about Carl's debt to Adassa.

[100] Donnovan has not paid the $11,000 costs award made against him, which he also has not appealed. He claims he does not know or understand why that award was made. He simply professes ignorance and has taken no steps to pay the required amount.

[101] Adassa's counsel requested disclosure of all of Carl's financial information in March 2025 so that her Management Plan could be completed. No information was provided by Donnovan.

[102] Donnovan's counsel submits that Donnovan may have made some mistakes as Attorney for his father but now that he has counsel, he can receive guidance and advice. Donnovan hired counsel less than two weeks before this hearing after requesting an adjournment to retain counsel in January 2025. I have no confidence that Donnovan will take advice from his counsel or anyone else, given his conduct in this matter.

[103] Given all the above, I find that Donnovan has not complied with his statutory obligations as an Attorney for Property and Personal Care under the SDA. He has breached his fiduciary duty by failing to foster contact with Carl and his family, failing to consult with them about Carl's care, and failing to provide disclosure and transparency regarding Carl's finances. Given that Carl does not want to go into long term care and Donnovan insists that he should, there also appears to be a conflict as to Carl's best interests and his care plan. It is not appropriate that he continue to languish at the hospital when there are family members willing and available to care for him in another setting.

[104] I therefore exercise my authority under s. 12(1) of the SDA to terminate the 2023 POAs and appoint a Guardian of Property and the Person for Carl.

Appointment of a Guardian of Property and the Person for Carl

[105] As Carl's POAs have been terminated, the Court must appoint a Guardian to manage his finances and his care. In determining who should be appointed Carl's Guardian, the Court must advert to the factors in ss. 55(3) and 24(5) of the SDA as follows:

a) whether the proposed guardian is the attorney under a continuing Power of Attorney for Property;

b) the current wishes of the incapable person, if they can be ascertained; and

c) the closeness of the relationship between the applicant and the incapable person, and if the applicant is not the proposed guardian, the closeness of the relationship between the proposed guardian and the incapable person.

[106] The 2023 POAs do not appoint an alternate Attorney and Carl did not have any prior POAs. Carl executed a second POA for Property in Canada relating to assets in Jamaica, appointing his sister Beryl as his Attorney. I have not been asked to make any findings with respect to this POA and its validity has never been confirmed.

[107] In terms of Carl's wishes, he informed his Section 3 counsel in January 2025, and again on July 16, 2025, that he wants Adassa to be his SDM. Carl was informed of the Will Say statements of his mother and sister. He disputed the statements made in the Will Say by Donnovan that his relationship with Adassa was dysfunctional. Instead, Carl reaffirmed his wish to have Adassa appointed as his Guardian.

[108] Carl no longer has capacity to manage his property or personal care decisions, but that does not preclude him from making his wishes clear. I note that he has never told Mr. Wiseman that he wants Donnovan to be his Guardian or SDM.

[109] On October 11, 2023, a medical report from St. Joseph's Hospital in Hamilton noted Carl's expressed wish to return to Jamaica. Adassa's Guardianship and Management Plan sets out exactly that. She will return Carl to Jamaica so that he may reside there. He will be treated by his long-time physician Dr. Barton and have access to a nearby hospital. Adassa will care for Carl in Jamaica and when she is required to return to Toronto for short visits, she will arrange for relatives or other caregivers to care for Carl. Carl's sister, former co-workers, and cousins are in Jamaica. He will be returning to his roots and the home that he and Adassa built for their retirement.

[110] Donnovan has unsuccessfully tried to have medical professionals provide him with a letter indicating that Carl cannot travel and should not be removed from Canada. A clinical note from St. Joseph's Healthcare in Hamilton dated November 10, 2023, noted that Carl and Donnovan had a conflict because Carl wished to return to Jamaica and Donnovan wanted him to stay in Canada. Donnovan requested a letter from the doctor confirming that Carl had to stay in Canada for medical treatment. The doctor refused to provide such a letter.

[111] Adassa's planned approach for Carl's finances in her Management Plan is to preserve his assets and income. As she will be providing most of the care for Carl, his expenses will be modest.

[112] The PGT has reviewed Adassa's Management and Guardianship Plans and did not express any concerns other than asking that particulars about any move to Jamaica be included. The PGT did not take a position on Carl being moved to Jamaica.

[113] On August 7, 2025 my assistant received correspondence from Donnovan and subsequently from his counsel regarding new evidence which had become available regarding Carl and Adassa's Jamaican residence. According to Donnovan, this evidence had not been available as of the date of the hearing. As Donnovan's counsel insisted that this evidence should be put before the Court, I ordered written submissions were to be provided on a schedule during the week of August 11, 2025. I have now received those submissions.

[114] Donnovan submits that in fact his mother and father do not own the "retirement" home in Jamaica and that it was sold to Mark Anthony Bryan for $350,000 on June 14, 2022. Donnovan submits that given this information, the crux of Adessa's Management Plan (the move to Jamaica) cannot be carried out. He also submits that this Court should not rely on Adessa's evidence as she must have known about the sale but failed to advise the Court of the sale or the disposition of the sale proceeds. As such, he argues that Adassa's plan to move Carl to Jamaica is no longer tenable and that her Management Plan should be rejected.

[115] In response, Adessa provided a supplementary affidavit sworn on August 15, 2025. Adessa denies that the subject property was sold and the title document provided by Donnovan refers to only a part of Lot 86 in the Fort Stewart Estate in the Parish of St. Mary which part is owned by Mr. Bryan. There are several other parcels of land which form part of Lot 86 and the part owned by Adessa and Carl is a separate parcel of land contained in Lot 86 of the Fort Stewart Estate. Adessa confirmed that she and Carl do own the retirement home referred to her in her Management Plan but that the title documents are in Jamaica and she was not able to retrieve them on the short turnaround time for submissions ordered by the Court.

[116] Adessa submits that the title challenge to the Jamaica property is simply a last-minute effort by Donnovan to divert the Court's attention from the real issues in this case. I agree. Donnovan has known about the proposed move to Jamaica since Adessa served her Management Plan on March 7, 2025. In his affidavit sworn November 26, 2024 Donnovan makes specific reference to his father owning property in Jamaica. Finally, even if Carl and Adessa do not own property in Jamaica, it would not change this Court's view as to who should be appointed as Carl's Guardian of Property and the Person. Carl's Guardian must make a decision as to where Carl will live and be cared for. That decision must reflect her obligations under the SDA with respect to Carl's best interests and financial means. If this means that the couple are not able to retire to Jamaica, they may have to stay in Toronto. That will be Adassa's decision to make and manage.

[117] Carl and Adassa have been married for 49 years. It has not been a perfect marriage, but they rely on and care for each other. The separation forced on them by Donnovan has been difficult for them both. As they each are now in their 70s, they want to be together and enjoy their retirement.

[118] Based on all of the above, I find that Adassa is the most reasonable and logical choice for Carl's Guardian of Property and the Person and that her Management and Guardianship Plan provide the best plan for Carl's future.

Other Issues

[119] Adassa requests that Donnovan pass his accounts. Because she is both a dependent of Carl's and his spouse, she is entitled to make such a request pursuant to s. 42(1) of the SDA. I see no reason why this request should be refused. Part of the reason why Donnovan's authority as POA was revoked is because of his complete lack of transparency with respect to his father's financial affairs.

[120] I require that Donnovan provide all banking, loan, and credit card documents relating to his attorneyship from September 22, 2023 to the date of this judgment so that Adassa's counsel may determine if a passing of accounts in court form is required.

[121] As for the contempt motion, this relief was not argued by Adassa's counsel. As Adassa will now be Carl's Guardian of Property and the Person, the pursuit of such a motion may not be financially feasible or necessary.

Costs

[122] Donnovan's counsel submitted that he has incurred approximately $30,000 in costs in reviewing the material to prepare for this hearing.

[123] Adassa's counsel seeks full indemnity costs of $124,893.33. The costs include full indemnity costs for both the September 2024 and the January 2025 motion. I decline to include any costs for the September 2024 motion as those costs were dealt with by Dietrich J. As for the January 2025 motion, it was adjourned. While I understand that full preparation was necessary, the contempt motion was never vigorously pursued at this hearing.

[124] Further, while Adassa has had success in this matter, this is not a case which would attract full indemnity costs. The costs requested are significant and overreaching.

[125] I am prepared to fix costs in favour of Adassa in the amount of $75,000. $40,000 will be paid by Donnovan personally. The other $35,000 is to be paid from Carl's assets but only if such funds are available after the payment of costs related to Carl's care and personal needs are made.

Final Orders

[126] The 2023 POAs are immediately terminated, and Donnovan has no further authority to act under them.

[127] Donnovan shall provide to Adassa or her counsel the originals of the 2023 POAs.

[128] Adassa is appointed as Carl's Guardian of Property and Person as of the date of these reasons.

[129] Donnovan is to forthwith provide to Adassa all of Carl's personal possessions, clothing, keys, identification documents, passwords, electronics, and banking information.

[130] Adassa must pass her accounts with the PGT's office within one year of the date of this judgment.

[131] Donnovan is to provide all of Carl's banking, credit card, loan and tax documentation within 30 days of the date of this judgment. If this documentation is sufficient for Adassa as an informal accounting from September 22, 2023 to the date of this judgment, then a formal passing of accounts will not be required. However, if the documentation is insufficient, Donnovan must pass his accounts as Attorney for Property for the period of September 22, 2023 to the date of this judgment. The passing of accounts is to be completed by December 31, 2025.

[132] Adassa must foster contact between Carl and other close family members and friends as appropriate.

[133] The contempt motion is adjourned sine die.

[134] Costs of this Application are fixed at $75,000. Donnovan must pay $40,000 of that amount personally to Adassa by December 31, 2025. The balance of the costs is payable from Carl's assets, but only if such funds are available after all costs have been paid for Carl's care and personal needs.

[135] Adassa's counsel is to prepare a draft judgment containing these terms and the usual terms contained in a Guardianship judgment. The judgment must be approved by the PGT and Donnovan's counsel. It may then be forwarded to me for review and signature.

C. Gilmore, J.

Released: August 18, 2025