CITATION: Vanleyden v. Cleroux, 2026 ONSC 2522
COURT FILE NO.: CV-22-10822
DATE: 2026-04-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alison Vanleyden
Applicant
– and –
Randy Cleroux
Respondent
Kimberly Gale and Palak Mahajan, for the Applicant
Adam Mason, for the Respondent
HEARD: January 23 and 29, 2026
REASONS FOR JUDGMENT
P.J. Boucher, r.s.j.
[1] The applicant asks that: (1) the respondent pass accounts for the period he acted under authority of a power of attorney for the late Maureen Cleroux; (2) the respondent provide a tracing of funds removed from Maureen Cleroux’s bank accounts during this period and an order for the return of those funds; and (3) orders be made restraining the respondent from dealing with the assets of the estate of Maureen Cleroux.
[2] The respondent argues he has provided a detailed accounting for the relevant period and asks that the application be dismissed.
Background
[3] Maureen Cleroux (“Maureen”) and George Cleroux (“George”) were the parents of the parties as well as another child, Brian Cleroux (“Brian”), who is not a party to this proceeding.
[4] Shortly after George died in 2011, Maureen prepared powers of attorney naming the respondent as her attorney. Maureen continued to live in her home at 1879 West Bay Road in Wahnapitae (the “West Bay property’) and to spend time in the winter at her Florida property. In 2018, Maureen sold the West Bay property and moved into the respondent’s home. She continued to travel to Florida and to spend time at the applicant’s home in Oshawa.
[5] In August 2019, Maureen was diagnosed with moderate stage Alzheimer’s, which worsened over the next two years until her death on April 25, 2021.
Positions of the parties
[6] The applicant submits the respondent ought to account for his dealings with Maureen’s property from the time the continuing power of attorney was executed in 2011 until her passing. She argues that the respondent misappropriated funds for his own personal use, which should be returned. She asks for orders preserving the assets of Maureen’s estate.
[7] The respondent argues that he did not assist Maureen with her finances in a meaningful way until later in 2018. Prior to that time, he did so only at her request and under her supervision. He denies taking her funds for his own use. He has provided records since 2018, which, he argues, sufficiently respond to the applicant’s request.
The law
[8] The court may, on application, compel an attorney of property to pass all or a specified part of their accounts: Substitute Decisions Act, 1992, SO 1992, c30, s. 46(1) (“SDA”).
[9] The SDA sets out an enumerated list of persons entitled as of right to bring such an application. Here, the applicant is considered “any other person” and leave of the court is therefore required: SDA, s. 42(4)6.
[10] When considering whether to grant leave, “courts must be convinced that: (1) the person or persons seeking leave have a genuine interest in the grantor’s welfare; and (2) a court hearing the application under s. 42(1) may order the attorney or guardian to pass his or her accounts:” Ali v. Fruci (2006) E.T.R. (3d) 187 (Ont. S.C.) at para. 3., cited with approval in Lewis v. Lewis, 2020 ONCA 56 at para. 4. The second prong of this test requires the court to consider the same factors the court takes into account in determining whether to order a passing of accounts: Lewis, at para. 7.
[11] In exercising its discretion under s. 42(1) of the SDA, the court considers, among other things: (1) the extent of the attorney’s involvement in the grantor’s financial affairs; and (2) whether the applicant has raised a significant concern regarding management of the grantor’s affairs: Dzelme v. Dzelme, 2018 ONCA 1018 at para. 7, citing with approval McAllister Estate v. Hudgin (2008), 42 E.T.R. (3d) 313 (Ont. S.C.) at para. 13.
Analysis
[12] The applicant is Maureen’s daughter and although she brings this application after Maureen’s passing, I am satisfied that she has a genuine interest in determining whether Maureen’s property was used for her benefit during the ten-year period prior to her death. She accordingly meets the first prong of the test. The focus of the court’s inquiry is accordingly on the second part of the Dzelme analysis.
The extent of the respondent’s involvement in Maureen’s affairs
[13] The respondent acknowledges that beginning later in 2018 he became more involved with Maureen’s financial affairs.
[14] Attorneys for property are required to keep accounts of all transactions involving the grantor’s property: SDA, s. 32(6). However, this obligation only arises where the grantor “is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property:” SDA, s. 38(1). “Reasonable grounds to believe” has been interpreted to mean “reasonable probability:” Foisey v. Green, 2019 ONSC 4989, at para. 42.
[15] Where, as here, an attorney for property is not compensated for managing the grantor’s property, they are expected to exercise “the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs:” SDA, s. 32(7).
[16] The respondent has produced volumes of records from January 2018 up to Maureen’s death. However, he argues that during the period 2011 to 2018 Maureen remained independent in terms of her finances and personal care decisions. While he has produced some records as far back as 2014, he resists a formal accounting for this period.
[17] In support of his position, he states that Maureen: (1) signed her own cheques until early 2020; (2) met with CIBC personally and signed her client profile in July 2016; (3) met with her physicians privately until early 2017; and (4) medical records demonstrate her dementia did not become problematic until later in 2018.
[18] My review of the voluminous medical records corroborates the respondent’s evidence. Maureen scored 29/30 on a Mini Mental State Examination (MMSE) completed in January 2012. Memory loss does not appear to be mentioned by her physician until April 2014, and Maureen declined a capacity assessment that year.
[19] Beginning in 2017 the records show that the respondent helped Maureen by contacting physicians and specialists on her behalf to schedule appointments, both while she was in Ontario and in Florida. And in the fall of 2018 a thoracic surgeon commented on Maureen’s ability to successfully hide her dementia until prompted with specific questions. She was diagnosed with moderate stage Alzheimer’s in August 2019 which worsened until her death.
[20] However, the applicant points to various examples of the respondent’s involvement in Maureen’s financial affairs in support of her request for an accounting for the period 2011 to 2018. I turn now to the applicant’s concerns.
[21] In August 2019 the respondent provided collateral history about Maureen during her assessment by Dr. Clarke at the North East Specialized Geriatric Centre. The applicant argues the respondent told Dr. Clarke that he had been managing Maureen’s financial affairs for four years, which the respondent denies. The relevant portion of Dr. Clarke’s report reads as follows:
Her son has been taking care of the shopping over the last four years, does all of the cooking, meal preparation, housekeeping, her medications, as well as took over her finances.
[22] A plain reading of this passage supports the respondent’s evidence that he had not suggested he had controlled Maureen’s finances for four years. I find that Dr. Clarke’s reference to the “last four years” defines when the respondent took over shopping. The remainder is a list of other ways the respondent supported Maureen, though not linked to the “last four years” comment.
[23] Another example of the respondent’s involvement relates to Maureen’s bank accounts. The respondent’s evidence is that someone at the bank recommended that he be added to Maureen’s accounts for estate planning purposes. The respondent could not recall the exact date this happened but believed it was before 2015. The respondent also had a TD Bank card linked to a joint bank account with Maureen.
[24] The respondent’s evidence is that during this earlier period he would bring Maureen to the bank, and he would let her take care of her banking independently. He further states that he used the TD Bank card when he made purchases for repairs to Maureen’s camp (in 2014) and to the West Bay property (in 2018). This account forms part of the estate.
[25] It is noteworthy as well that Brian Cleroux, who is not a party to this proceeding, was made a joint owner with Maureen on another account. After Maureen’s death, Brian agreed to have these funds placed into the estate.
[26] The respondent also acknowledged he assisted Maureen with online banking beginning some time after 2013. Maureen occasionally used telephone banking but at some point, the bank recommended a switch to online banking. According to the respondent, many of Maureen’s bills were paid automatically through the bank. But he assisted her with things like money transfers.
[27] A further example involves the West Bay property. It suffered some damage in December 2017. The respondent was the point person for dealings with the insurance company regarding the claim. He also used the power of attorney to complete paperwork necessary for the sale of the property, although his evidence is that he did this because Maureen was unable to climb the stairs to reach the lawyer’s office, and that he did it with Maureen’s approval.
[28] On this record, I am unable to conclude the respondent ought to have had reasonable grounds to believe Maureen was incapable of managing her property prior to late 2018. There is no evidence linking her gradual dementia with the type of assistance the respondent provided regarding her property, and which I have described. And in any event, the respondent has provided an informal, detailed accounting with respect to the time period from January 2018 to Maureen’s passing.
Has the applicant raised a significant concern regarding management of Maureen’s affairs?
[29] The applicant has raised a number of what she submits are significant concerns, which I will review in turn. I remind myself that I am to consider the whole of the evidence when making my determination.
The West Bay property
[30] The applicant asserts that the respondent sold the West Bay property improvidently, by accepting the first offer they received and at below market value. But Randy’s evidence is that he could not recall if there were negotiations or counter offers. And the applicant resorts to an opinion of value, rather than an appraisal, to speculate that the West Bay property could have sold for $30,000 to $80,000 more than it did.
[31] The applicant also argues that the respondent cannot account for the payment received from the insurance company with respect to the insurance claim relating to Maureen’s home. She also raises concerns about two different amounts being quoted by the insurer and wonders why the lower amount was accepted by the respondent. However, an email from the insurer confirms the lower amount represented a payout on the claim. This happens routinely where an insured accepts a cash payout rather than have a contractor complete the work at a higher price that reflects the contractor’s labour. Randy completed the repairs himself. This necessitated purchases at hardware stores, trips to the landfill, and lunches paid for by Maureen, for example, all of which have been questioned by the applicant.
[32] The respondent has also provided evidence that the payout was deposited into Maureen’s account, contrary to the position taken by the applicant.
Questionable spending
[33] The applicant raises concerns related to Maureen’s US bank account including that there were many cash withdrawals. As I have explained, Maureen spent most winters in Florida. The respondent has provided copies of the cheques and withdrawal slips with respect to this account dating from 2016, which was as far back as the bank could find records. All but one of the withdrawal slips are signed by Maureen. They are mostly for $200. As well, almost all the cheques are signed by Maureen, and they clearly relate to her dealings in Florida such as paying property taxes, lawn care, golf cart repairs and donations to a church. The respondent acknowledged that one transaction for $200 from this account was inadvertently made by him while he was in Pittsburgh and he agreed to pay it back.
[34] The respondent’s evidence is that Maureen liked to have cash on hand to pay for things such as lottery tickets, bus fare and gambling. The frequency of the cash withdrawals accord with this type of modest spending, and I accept the respondent’s evidence on this point.
[35] The applicant also disputes green fees for golf, despite the total being less than $110 over a three-year period. The respondent reasonably explains that when Maureen could no longer golf, she sometimes accompanied him rather than stay at home alone, and she sometimes offered to pay for the round.
[36] Concerns are also raised specifically about e-transfers from Maureen’s US bank account and TD bank account in Canada. These e-transfers start in 2018, and the respondent has explained that they covered expenses for the West Bay property and the property in Florida and to reimburse the respondent for things he purchased for Maureen such as airline tickets and for money he sent to Brian.
[37] The applicant further raises as problematic e-transfers between Maureen’s accounts and the respondent’s and his spouse’s accounts, including an allegation that over $7,000 was transferred to the respondent’s spouse’s account. With respect to the latter, the applicant supplied a chart in support of her argument. But the chart is simply her summary and does not refer to supporting documents. My review of the US bank account statements suggests e-transfers totalling far less than the amount claimed by the applicant. I accept the respondent’s explanation that the e-transfers were done during the COVID-19 pandemic when they could not travel to Florida. At the time, the respondent’s account was used as an intermediary to move money between Maureen’s Canadian and US bank accounts.
[38] The applicant also suggests it is problematic that while Maureen was in Florida cheques she purportedly signed were cashed in Canada and withdrawals and transfers were made on her TD Bank account in Canada. But the respondent had a TD Bank card and has explained the type of purchases he made for the West Bay property with Maureen’s approval. And the cheques represented Christmas presents to the adult children that Maureen gave every year. They would not surprisingly cash them in Canada.
[39] The applicant raises concerns about regular withdrawals of $200 from one of Maureen’s CIBC accounts and from her RRIF. However, the withdrawals from the CIBC account were deposited into her TD Bank savings account monthly; from the RRIF, into her TD Bank chequing account. I pause to note that the respondent has disclosed records from the TD Bank accounts from at least early 2014, which, again, is as far back as the bank could find records.
[40] The applicant further suggests spending on food and LCBO purchases was excessive. But the applicant acknowledged Maureen liked to drink alcohol. And my review of the records suggests the money spent monthly on these items was not excessive.
[41] Finally, the applicant objects to expenses relating to a hot tub. The respondent’s evidence, which I accept, is that he and Maureen purchased a hot tub together when she resided at the West Bay Property. It was moved to his home when the West Bay property was sold, and they continued to share reasonable expenses relating to it until September 2020.
Unaccounted accumulated earnings
[42] The applicant submits that Maureen’s tax returns from 2011 to 2021 reveal total income of $528,959 over this period comprised of various pensions and dividends. She questions why the estate accounts do not reflect this income in the form of savings. In my view, this argument does not give rise to serious concerns about the management of Maureen’s property.
[43] Maureen’s earnings included taxable capital gains and dividend income. Consider as well that during this time Maureen was responsible for the maintenance and costs related to two properties (until 2018) and one property (until the time of her passing). She also had her own living expenses, even after she moved in with the respondent.
[44] The respondent has provided a detailed accounting of Maureen’s property from January 2018 to her death. It is also clear from his materials that Maureen’s net worth increased from 2018 to 2021.
Conclusion
[45] Having considered the extensive evidence on this application, I am not persuaded that leave ought to be granted to compel the respondent to pass accounts. And if I had granted leave, I would not have ordered a passing of accounts.
[46] In my view, the respondent’s dealings in Maureen’s financial affairs prior to 2018 amounted to no more than helping Maureen as needed. Maureen continued to act independently, despite some assistance from the respondent. I find that Maureen’s cognitive decline did not become problematic until the latter part of 2018, and by this time the respondent ought to have had reasonable grounds to believe she was incapable of managing her property.
[47] The respondent has provided detailed evidence including records and an informal accounting from January 2018 to the date of Maureen’s passing. Some of these records go as far back as 2014. Based on my review of this evidence, and for reasons I have explained, I am unable to conclude that there are significant concerns regarding the respondent’s management of Maureen’s affairs.
[48] In argument, the applicant sought various forms of relief that were not claimed in the application. These include tracing orders, compelling the respondent to return funds to the estate and non-dissipation orders with respect to estate assets.
[49] Lawsuits must be decided within the boundaries of the pleadings. Doing otherwise deprives defendants of both their right to know the case they must meet, and the opportunity to meet it: Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.), at paras. 59-63. I would dismiss the balance of the relief claimed by the applicant in argument on this basis. However, even if the notice of application contained these additional claims for relief, I would have dismissed them.
[50] Tracing orders may be granted where a claimant can demonstrate that an asset in which they claim a proprietary interest, or a substitute for it, is in the hands of the recipient: Sase Aggregate Ltd. v. Langdon, 2023 ONCA 554 at para. 56, citing B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, at para 75. Here, the applicant acknowledges she is unable to identify what she believes has been appropriated by the respondent and where it may be. Her claim for a tracing order and an order that the respondent return funds to Maureen’s estate must accordingly fail.
[51] The applicant’s claim for a non-dissipation order should have been brought in an estate proceeding on notice to Brian, the other beneficiary of Maureen’s estate. Such an order could have a significant impact on Brian’s interests, and he is entitled to respond. In any event, I am not satisfied that the test for a non-dissipation or preservation order is met on this record.
[52] Preservation orders will not be granted where: (1) they serve no practical purpose; (2) the applicant has not satisfied the criteria for preservation orders set out in r. 45.02 of the Rules of Civil Procedure, RRO 1990, Reg. 194; and (3) there is no evidence assets are at risk of depletion: Garland v. Consumers’ Gas Co., 2004 SCC 25 at paras. 85-88.
[53] The test for a preservation order under r. 45.02 is a modified version of the test to grant injunctive relief. The moving party must: (1) establish a right to a specific fund; (2) demonstrate a strong prima facie case; and (3) demonstrate the balance of convenience favours granting the relief: Richard v. Quesnel (Estate), 2021 ONSC 7404 at para. 13.
[54] Rule 45.02 permits the court to make a preservation order where a party’s right to a specific fund is in question. Here, the applicant is one of three beneficiaries entitled to share equally in the distribution of Maureen’s estate. It is difficult to understand how her one-third interest can be identified as a specific fund that should attract a preservation order.
[55] Nor am I satisfied the balance of the test is met. The three beneficiaries have already received equal interim distributions from Maureen’s estate. And I have not found there were any significant concerns regarding the respondent’s dealings with Maureen’s property prior to her death. Nor is there any evidence to suggest the funds in the estate have been misappropriated or mismanaged by the respondent.
[56] In support of her request for a non-dissipation order, the applicant further raises concerns about the possibility the respondent’s legal fees for this proceeding are being paid out of Maureen’s estate. But reasonably incurred litigation accounts may properly be paid from the assets of the estate without the consent of the beneficiaries: Toller James Montague Cranston (Estate of), 2021 ONSC 1347 at para. 98, citing Furtney v. Furtney, 2014 ONSC 3774, at paras. 43-44. Here, I am unable to determine the reasonableness of the accounts because none was filed. However, my point is that raising this as a ground to make a preservation order on this record is without merit.
Disposition
[57] For these reasons the application is dismissed.
[58] If the parties cannot agree on costs, the respondent may file written submissions no more than two pages in length, not including offers to settle or bill of costs within 15 days of the date of this judgment. The applicant will have 21 days from the date of this judgment to file submissions with the same restrictions. There will be no reply. Late submissions will not be considered.
Regional Senior Justice P.J. Boucher
Released: April 29, 2026
CITATION: Vanleyden v. Cleroux, 2026 ONSC 2522
COURT FILE NO.: CV-22-10822
DATE: 2026-04-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alison Vanleyden
Applicant
– and –
Randy Cleroux
Respondent
REASONS FOR JUDGMENT
P.J. BOUCHER, R.S.J.
Released: April 29, 2026