Court File and Parties

Court File No.: CV-25-00002807-0000 Date: 2025-09-29

Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y6

Re: Nichole Samantha McDonald, Applicant

And: Ann McDonald, Etheldreda Marryshow, Doreen Andrews, The Public Guardian and Trustee, Respondents

Before: Justice Kurz

Counsel: M. Jasmine Sweatman, for the applicant No one appeared for the respondents

Heard: September 25, 2025, Via Video (ZOOM)

Endorsement

Introduction

[1] This is an application to declare powers of attorney for personal care and property (the "PoA's"), signed by the Respondent, Ann McDonald ("Ann") declared valid and in compliance with the formalities set out in the Substitute Decisions Act, S.O. 1992, c. 30 (the "SDA"). In the alternative, if they do not comply with those formalities, the Applicant asks this court to find that the PoA's are nonetheless effective and valid under the SDA's curative provisions, ss. 10(4) and 48(4), described in greater detail below. In the further alternative, the Applicant requests the court to appoint her as the guardian of property and personal care for Ann.

Background

[2] The Applicant is Ann's daughter and her sole offspring. Ann's co-respondents are her only siblings. They have consented to this Application.

[3] Ann is 77 years old. She is widowed and currently single. She has been diagnosed with diabetes, osteoporosis, arthritis. She has resided at the Extendicare Rouge Valley Long term Care Facility since October 2020. Dr. Horne D. Ing is Ann's attending physician at that facility.

[4] On March 11, 2025 Dr. Ing wrote a letter in which he stated that he has found Ann to be suffering from advanced dementia and in need of 24-hour care. He further described Ann as 'NOT mentally capable of making decisions regarding her health care nor is she capable of making financial decisions'.

[5] Ann's co-respondents, Etheldreda Marryshow ("Carrie") and Doreen Andrews ("Doreen") are her only siblings. Doreen lives in Grenada. Carrie lives in Scarborough.

[6] On July 24, 2018, Ann completed the Government of Ontario power of attorney forms for both property and personal care. She dated them July 24, 2018. In those forms, Ann appointed the Applicant and Carrie as her joint attorneys for personal care. She further appointed the Applicant as her primary attorney for property with Carrie as either her joint or alternate attorney for property. As counsel for the Applicant writes, this appointment is unclear.

[7] It appears that Ann did not sign the power of attorney forms in the presence of any witnesses. However, on July 29, 2018, Sharon Cruickshank ("Sharon") and Evarald Bennett ("Evarald"), friends of Ann's family, signed both documents as witnesses in Ann's presence.

[8] Ann then changed the date of her signature (without initialling the change) on the power of attorney forms from July 24 to July 29, 2018. She did so by changing the "4" in "24," to a "9" as in "29." This represented the July 29, 2018 date of the witness' signatures.

[9] Due to her age, Carrie renounces any claim to act as power of attorney or guardian for Ann. She supports this application. The same is true of Ann's other living sibling, Doreen.

Issues

[10] This application raises the following issues:

1. Are the PoA's formally valid under the statutory formalities of ss. subsections 10(1) and 48(1) of the SDA?

2. If not, are they saved by the curative provisions of ss. 10(4) and 48(4) of the SDA?

3. If the PoA's are not saved by the curative provisions of the SDA, should the Applicant be appointed as guardian of property and personal care for Ann?

[11] For the reasons which follow, I find that the PoA's do not meet the statutory formalities of the SDA but that they are saved by its curative provisions. For that reason, it is not necessary to consider issue no. 3.

Issue No. 1: Are the PoA's Formally Valid Under the Statutory Formalities of ss. Subsections 10(1) and 48(1) of the SDA?

Power of Attorney for Property

[12] Under part 1 of the SDA, both the grantor and attorney for property must be 18 years of age. The grantor must have the mental capacity to give a power of attorney at the time of execution (s. 8(1)).

[13] Under s. 8(1), a person is capable of giving a continuing power of attorney if he or she:

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

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

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

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

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

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

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

[14] Formally, the power of attorney form must be signed by the grantor in presence of two witnesses, both of whom must also sign (s. 10(1)). The witnesses to the grantor's signature may not include the attorney, the attorney's spouse or partner, the grantor's spouse or partner, child or any person under guardianship or under the age of eighteen years old: s. 19(2).

Power of Attorney for Personal Care

[15] In order to create a valid power of attorney for personal care, the grantor must:

1. be at least sixteen years old: s. 43,

2. have the ability to understand whether the proposed attorney has a genuine concern for the person's welfare: s. 47(1)(a);

3. appreciate that the person may need to have the proposed attorney make decisions for the person (47(1)(b)). have the mental capacity to give a power of attorney at the time of execution: s. 47(2);

4. sign the form in presence of two witnesses, both of whom must sign.

[16] The attorney must be at least 16 years old: s. 44.

[17] The rules for witnesses for powers of attorney for personal care are the same as those for property: s. 48(2).

[18] The person acting under a power of attorney for personal care must not be an individual that provides health care, or residential, social, training or support services to the grantor for compensation unless they are the grantor's spouse, partner or relative: s. 46(3).

Analysis re SDA Formalities

[19] Here there is no question that all of the formalities of the SDA have been met, with one exception: Ann did not sign the power of attorney forms in the presence of her witnesses, and they did not witness her signature at the time she affixed it to the forms.

[20] Thus, the PoA's do not meet the formal requirements of the SDA. Pursuant to ss. 19(4) and 48(4), they are not effective.

Issue No. 2: If the PoA's Do Not Meet the Formal Requirements of the SDA Are They Saved by the Curative Provisions of ss. 10(4) and 48(4) of the SDA?

[21] That being said, the SDA contains curative provisions. Under s. 10(4), regarding powers of attorney for property:

(4) A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person's application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.

[22] In Vrantsidis (Property and personal care of) v. Vrantsidis (Property and personal care of), 2023 ONSC 321, affirmed 2024 ONCA 65, Dietrich J. explained at para. 40 that "the SDA contains a 'substantial compliance' provision at s. 10(4), which would allow the court to validate powers of attorney in the event of an irregular execution."

[23] Similarly, in regard to powers of attorney for personal care, under s. 48(4):

(4) A power of attorney for personal care that does not comply with subsections (1) and (2) is not effective, but the court may, on any person's application, declare the power of attorney for personal care to be effective if the court is satisfied that it is in the grantor's interests to do so.

[24] As the Applicant's counsel put it in her factum:

Ann's intentions are clear: she asked [the Applicant] Nichole to get the forms. She filled out the forms appointing, in both cases, Nichole (either jointly or alone). She signed the forms on July 24, 2018. She was present when the witnesses signed on July 29, 2018. She changed the date of her signature to reflect the date the witnesses signed.

[25] The SDA does not require a specific form to be used to create a valid power of attorney: s. 7(7.1) and 46(8) – see also: Vrantsidis, at para. 40.

[26] Counsel for the Applicant points out that there are no cases on point. However, in Geffen v. Goodman Estate, [1991] 2 SCR 353, at para. 58 and 63 the Court held in the context of a trust deed, that a "wills exception" which already existed, could be applied to the formation of the trust deed. The basis for the exception was that the interests of the client and justice will be furthered by admitting evidence that would allow the court to ascertain the client's true intentions. As Wilson J. wrote for the majority of the Supreme Court of Canada:

64 In my view, the considerations which support the admissibility of communications between solicitor and client in the wills context apply with equal force to the present case. The general policy which supports privileging such communications is not violated. The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were. And the principle of extending the privilege to the heirs or successors in title of the deceased is promoted by focusing the inquiry on who those heirs or successors properly are. In summary, it is, in the words of Anderson Surr. Ct. J. in Re Ott, supra, "[i]n the interests of justice" to admit such evidence.

[27] The Applicant argues that the court should analogize the wills exception, which can be applied to a trust deed, to a power of attorney. In other words, the court can look at other evidence to determine Ann's true wishes despite the discrepancy with the date of her signature.

[28] In Neuberger Estate v. York, 2016 ONCA 191 at para. 68, Gillese J.A., writing for the Court of Appeal for Ontario approved the comments of Cullity J. in Otis v. Otis, [2004] O.J. No. 1732, 7 E.T.R. (3d) 221 (S.C.J.), at paras. 23-26, that "the court's jurisdiction in probate is inquisitorial." As Gillese J.A. explained:

That is, the court's role is not simply to adjudicate upon a dispute between parties. It is the court's function and obligation to ascertain and pronounce what documents constitute the testator's last will and are entitled to be admitted to probate. Further, the granting of probate does not bind only the parties to the proceeding. Unless and until probate is set aside, it operates in rem and can affect the rights of other persons. The court also has a special responsibility to the testator, who cannot be present to give voice to his or her true intentions.

[29] The Applicant argues that the court must consider all of the underlying events regarding the PoA's in order to ascertain Ann's true intentions in having those documents prepared and in executing them.

[30] The Applicant also refers to Lavallée et al c. Gravelle Desormeau et al, 2024 ONCS 6794. There Flaherty J. found a will to be valid even though the testator did not sign the will in the presence of the two witnesses. Rather, she later identified the document as her will and asked them to sign it. There was no discussion as to whether the signature on the will was that of Ms. Gravelle. However, the two witnesses signed two identical copies of the will in the presence of the testator and their fellow witness.

[31] In coming to his conclusion, Flaherty J. referred to s. 4(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, which requires the following in order to find a will valid:

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

[32] Flaherty J. found that the requirement that a testator acknowledge their signature in the presence of two or more attesting witnesses, present at the same time, need not be an explicit oral acknowledgment. Rather, as written at para. 19:

I accept that where a person asks someone to witness their will and presents them with a signed document, this is an acknowledgement that the signature on the will is theirs. The fact that a person "assumes" the will suggests that they also "assume" the signature that appears on the document.

[33] The Respondent asks me to analogize the findings of Flaherty J. under the Succession Law Reform Act to the curative provisions of the PoA.

Analysis of the Application of the Curative Provisions of the PoA to the Facts of this Case

[34] The curative provisions set out above state that the court may find a power of attorney form to be valid, even if the absence of formal compliance with the PoA's technical requirements, if it finds:

1. For powers of attorney for property: "it is in the interests of the grantor or his or her dependants to do so": s. 19(4); and

2. For powers of attorney for personal care: "it is in the grantor's interests to do so": s. 48(4)

[35] The difference between the two tests appears to be the fact that a grantor may have dependents at the time of their incapacity and the interests of those dependants must be protected as well.

[36] Nonetheless, the key issue under the SDA's curative provisions is the interests of the grantor (and dependents regarding property), rather than a simple or formalistic adherence to technical requirements. As it dealt with the absent testator in Neuberger Estate, the court determining the validity of a power of attorney here has a special responsibility to the grantor, who is now incapable of giving voice to her true intentions.

[37] The curative provisions of the SDA allow the court to give voice to those intentions, which are every bit as germane as those of testators in the cases cited above; perhaps even more so as those intentions relate to the grantor herself and the manner in which she wished to be cared.

[38] Here, like Ms. Lavallée, Ann acknowledged her signature on the PoA's when she asked the two witnesses to sign them as witnesses and changed the date of her signature to align with the date that her witnesses signed the forms. In doing so, she can be said to have ratified her previous signature within the context of demonstrating her intention to be bound by their terms and to align the date of her signature with that of her witnesses.

[39] I add that this narrative offers further context to determine that Ann felt at the time of both her original signature and the date that her witnesses signed as well, that the terms of the PoA's were in her best interests.

[40] Based on all of the evidence before me, I agree that it is in Ann's interests that I find the PoA's to be valid, effective and binding.

Conclusion

[41] For all of the reasons cited above, I grant this application and declare as follows:

1. The respondent, Ann McDonald, is incapable of personal care decisions on her behalf pursuant to section 45 of the Substitute Decisions Act, 1992.

2. The power of attorney for personal care of Ann McDonald dated July 29, 2018, is effective and valid.

3. Nichole McDonald is the sole attorney for personal care for Ann McDonald under the power of attorney dated July 29, 2018.

4. The respondent, Ann McDonald, is incapable of managing her own property pursuant to section 6 of the Substitute Decisions Act, 1992.

5. The power of attorney for property of Ann McDonald dated July 29, 2018, is effective and valid.

6. Nichole McDonald is the sole attorney for property for Ann McDonald under the power of attorney dated July 29, 2018.

Marvin Kurz J.

Released: September 29, 2025

Footnotes

[1] All references to section numbers refers to the SDA.

[2] s.4(3) of that statute offers an exception for witnesses: audio-visual communication technology in certain circumstances which are not relevant to my considerations here.

[3] Note translation from the original French provided through LexisNexis translation feature.