CITATION: Perriam v. Pereira, 2026 ONSC 3180
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRACE PERRIAM
Applicant
– and –
JOSE MARIA PEREIRA, GEMMA CHARLTON, in her capacity as the interim Estate Trustee for the Estate of Jose Maria Pereira and ROBERT PEREIRA and THE PUBLIC GUARDIAN AND TRUSTEE
Respondents
Erin Rankin-Nash, for the Applicant
Ian Wright and Conor Culverhouse for the, for the Respondent Robert Pereira
Gemma Charlton, for the Estate of Jose Maria Pereira
HEARD: October 2, 2024, April 17, 2025, September 3, 2026
TRANQUILLI J.
1This bitter sibling dispute concerns the capacity of the late Jose Pereira in the last decade of his life before his admission to long-term care in March 2022. He passed away in April 2025 at the age of 85, before the conclusion of this proceeding.
2The other parties to the application are two of Mr. Pereira’s four children. The applicant Grace Perriam (“Grace”) began this application in 2023. Her focus was the care of management of her father Jose Pereira (“Jose”) and the management of his property since in or about 2009. She claims her brother, the respondent Robert Pereira (“Bob’) financially abused their father after Bob moved into their father’s home in or about 2009. Their sisters Ana and Maria do not participate in the application but either they or their respective spouses provided evidence in support of Grace’s position. The balance of these reasons will largely refer to the parties and family members by their first names for clarity.
3Jose was debilitated by a stroke in 1999 and disabled from work when he was about 60 years old. He remained living in his Strathroy home thereafter with the support of his family. His late wife managed the banking and finances with their daughter Grace. Grace continued to manage Jose’s banking after her mother passed away in 2005 and she and the sisters and other family shared in meal preparation and housekeeping duties. However, in or about 2009, her brother, who recently lost his own house, moved into their father’s house along with his partner. Grace submits that Bob thereafter gradually excluded the sisters from their father’s life, going so far as to change the locks to their father’s house. Grace submits she was unaware of her father’s poor health and financial situation over the next several years until she learned he was admitted into long-term care in March 2022 with barely enough money to cover his expenses. She discovered that in 2012 Jose appointed his son Bob as his sole power of attorney for property. Bob then removed Grace from their parents’ joint bank account. From a preliminary review, she submits her brother misused the power of attorney in breach of his fiduciary duties to secure debt against their father’s home and to divert approximately $90,000 from their father’s bank account over at least an eight-year period for his benefit, all while he, his partner, and his partner’s children, also lived in her father’s house rent-free.
4Grace claims her father was incapable of granting the 2012 power of attorney for property because of his stroke. She submits her father was vulnerable to the undue influence of his son and induced to spend money for Bob’s benefit beyond his personal means. Her brother also failed in his fiduciary duties to their father by failing to ensure he received proper nutrition and health care. The applicant sought orders removing her brother as the attorney for property and to pass accounts, and orders appointing herself as guardian of her father’s property and personal care and other related relief. The dispute concerning continuation of the power of attorney and guardianship is moot with their father’s passing. However, the application now continues the issues of the late Jose Pereira’s capacity, including his capacity to grant the 2012 power of attorney, passing of accounts and related relief.
5The respondent Robert “Bob” Pereira denies his sister’s allegations. The respondent claims their father invited the respondent and his family to move into their father’s home, which he expects to receive under their late father’s will. The respondent and his family helped Jose with his daily care and home maintenance as payment in kind for living in the house. He changed the lock to the front door because it broke. The family were still free to use the back door, and he never barred family from visiting their father. Jose wanted his son to manage his finances because he had a falling out with Grace about control over his money. The respondent states his father showed his appreciation for Bob with gifts in kind, like financing or sharing in the cost of his trucks and the purchase of hot tubs. Home renovations were with his father’s permission and his father shared in the benefit. The respondent agrees his father had limitations but submits there was no evidence of if or when his father, in fact, became incapable. He acknowledges there is some evidence that questions his late father’s cognitive status when Jose was admitted to long-term care in 2022. However, he continues to assert there is no evidence that Jose was incapable at the time his father granted the respondent the power of attorney for property in 2012. He submits there is no reasonable basis on which to impose upon their father’s modest estate a disproportionate and financially burdensome exercise of passing of accounts, for which his sister has no standing to require.
6Jose’s Strathroy home is at the heart of this dispute. The court was told Jose wanted to keep the house in his family after his death because he built it with his own hands. Jose and his wife discussed the future for the house with their children in 2004, when they were updating their estate plans. None of the three daughters were interested in taking an interest in the house under their parents’ estate(s), but Bob was. The net effect of the 2004 mirror wills executed by Jose and his late wife is that under Jose’s will, Grace and Bob are estate trustees and Bob inherits the Strathroy house. The four children share the residue equally. However, Grace’s evidence is that their parents required, and the children agreed, that if Bob received the house under the will, the three sisters would share equally in one-half of the value of the house. Bob acknowledged there was an agreement outside of the will that he was going to honour but he inferred he no longer intended to. Grace submits Bob treated the house as though he had already received it under the will after he moved in. He used their father’s limited income to fund renovations that could not reasonably be for their father’s benefit. This includes a new driveway, roof, flooring, pool, hot tubs and a sprinkler system. In response, Bob submits this application was never about their father’s welfare. His sister was not involved in their father’s life for years but then just presented herself to demand her “cut” of the house after their father went into long-term care.
7These reasons will explain the application for a declaration that Jose Pereira was incapable of granting the 2012 power of attorney for property is dismissed. There are reasonable questions about Jose Pereira’s capacity between 1999 and his admission to long-term care in 2022, but the limited and inconclusive evidence over that lengthy period of time cannot displace the presumption of capacity. However, I am satisfied it is appropriate to require Bob to pass his accounts. The court is mindful of the concern about the reported modest size of the estate and that the benefit to the exercise could be limited by the datedness of some of the transactions. However, the respondent was extensively involved in his father’s financial affairs. The applicant’s preliminary informal accounting demonstrates several concerns and questions that reasonably arise from the respondent’s management of his father’s finances since he was first authorized to act as attorney. Bob’s fiduciary responsibilities require an accounting for the period beginning March 23, 2012 until April 2025.
Issues
8The following questions must be determined on this application:
Is the 2012 Power of Attorney invalid because Jose Pereira was incapable?
Should the respondent be required to pass accounts?
9The application was heard on a record of affidavits, transcripts of cross-examinations and submissions of counsel. Section 3 Ms. Charlton counsel was appointed. Ms. Charlton initially intended to present Jose’s position on the issues regarding his care and management of his property by affidavit. However, counsel later concluded Jose did not demonstrate a consistent or correct understanding about what had been done with his property. She instead presented a statement of his position and reported she would have concerns about Jose’s capacity to either manage his property and personal care or to grant either type of power of attorney as of the time of the hearing in 2024.
10The application was first argued in October 2024 on the issues of termination/revocation of the power of attorney for misconduct and incapacity, a finding of incapacity, appointment of the applicant as her father’s guardian for person and property and requiring her brother to pass accounts. The applicant contacted the court in early 2025 while the decision was under reserve to request that the hearing be reopened to receive fresh evidence. Jose then passed away in the intervening time while dates were canvassed to address the request. Jose’s will names Grace and Bob as estate trustees, which posed challenges for both this proceeding and the estate administration. This proceeding was regularized with an order to continue and the consent appointment of Ms. Charlton, formerly s. 3 counsel, as interim Estate Trustee for Jose’s estate. The parties agreed on the process by which the court would be asked to consider the applicant’s motion to reopen the hearing in writing on an unopposed basis, with no evidence or argument from the respondent.
11I was satisfied the health care records from 2022 to 2025 and collection agency records regarding an outstanding Rogers account in Jose’s name were relevant to understanding Jose’s capacity and Bob’s conduct as a fiduciary. The hearing continued in September 2025 for further submissions arising from the new evidence.
12However, the applicant’s written submissions upon continuation requested new relief including orders that Bob personally assume the debts placed against the house or incurred in their father’s name, for tracing to the personal accounts of Bob and his partner, that a portion of the respondent’s share of their father’s estate be directed toward s. 3 counsel expenses or alternatively orders for medical records for further investigation of Jose’s capacity, restricting Bob from placing any encumbrances on the house pending disposition of the application. The applicant also sought declarations that the will executed by Jose in 2004 was void for incapacity.
13The court agrees with the respondent’s objections to the additional relief apparently sought. The application was reopened following a process agreed to by the parties. The court’s reasons permitted the further hearing for submissions as to the relevance of the new evidence on the issues of capacity as it related to the power of attorney and passing of accounts. The additional relief was not sought on notice to the respondent and was not part of the initial application. Some of the relief sought seemed to contemplate continuing litigation concerning Jose’s capacity by instalment. The matter of his capacity was argued and under reserve with the court, subject only to argument on the relevance of the fresh evidence. The application previously contemplated seeking production of medical records but did not pursue that request in the face of Jose’s position that he did not consent. As was noted in my reasons on the motion, the re-opening of a proceeding to receive fresh evidence is considered exceptional. Orderly and efficient litigation requires finality. Therefore, I considered the fresh evidence and submissions of the parties as it related to the issues of capacity and the passing of accounts on the record as previously heard. The court will not consider the additional relief sought by the applicant.
1. Is the 2012 Power of Attorney invalid because Jose Pereira was incapable?
14Jose was in poor health and highly dependent after his stroke in 1999. There is no dispute that he was paralyzed on the right side of his body, had limited mobility, used a cane, could no longer drive, lost the ability to speak English and only spoke Portuguese. He could not work or run his business and no longer enjoyed playing cards. He needed help with self-care and meals. He relied on his family for regular care. Weekly personal support care visits began before his wife passed away in 2005. He did not manage his banking, budget or bill payments.
15In March 2012, Jose met with his lawyer Joseph Reis to sign a Continuing Power of Attorney for Property that appointed his son as his sole attorney with responsibility of all his assets. Nothing else is known about the circumstances of the March 2012 meeting with Jose’s lawyer. Mr. Reiss has since passed. Inquiries were made, but his records and files are not available. It is known that Mr. Reiss previously prepared a power of attorney appointing Jose’s late wife and Grace as co-attorneys in 1994 and that he prepared the wills for Jose and his late wife in 2004 (the status of that 1994 power of attorney was never raised in argument).
16There is no dispute Bob took his father to this appointment. Bob claims his father asked him to. Bob said he understood his father and Grace had a falling out and that Jose “fired” Grace because his sister was very controlling of her father. Grace denies a falling out. She urges the court to infer that her brother engineered the appointment and sudden change in estate management. Section 3 counsel related that Jose did not refer to any estrangement with his daughter as a reason for the 2012 power of attorney. He told counsel he liked having Bob manage his property and he thought Grace was very busy with her own life.
17The applicant urges that there is ample evidence that her father was incapable of managing his property and his personal care because of and ever since his 1999 stroke. He did not have the capacity to execute the 2012 POA. She argues that her brother was not initially forthright in this proceeding about his own awareness of their father’s diminished capacity. The long-term care admission records now show Bob knew his father had short term memory difficulties, amongst other problems. Most telling is that her father’s mini-mental state examination (MMSE) shortly before his March 2022 long-term care admission was 7/30. The applicant submits this indicative of dementia of a severe and long-term nature.
18Grace also submits the suspicious circumstances surrounding her father’s execution of the 2012 Power of Attorney add further weight to the conclusion Jose did not have capacity grant the authorization. Rather, it all points to undue influence arising from Bob’s dominant position in his father’s isolated life after their mother passed away. Jose named only Bob as the sole attorney, with no alternate. This contrasts with his 1994 power of attorney that appointed both the applicant and her mother and the 2004 mirror wills that appointed joint estate trustees and where the estate plans were discussed by her parents with the whole family. She argues her mother intentionally excluded her brother, with a proven history of financial irresponsibility, from having any authority over her own 2004 estate plans. Once he was appointed, her brother then immediately acted on the authority to have her removed from the joint bank account. Finally, it is most telling that her brother’s focus was to ensure he attained control over their father’s property; no arrangement was made to address their father’s personal care needs. Bob volunteered that he did not know he needed a separate document to address his father’s care.
19A person is capable of giving a continuing power of attorney if, among other criteria, he knows what kind of property he has and its approximate value, is aware of his obligations to his dependants, knows the attorney will be able to do anything on his behalf in respect of property that he could do if capable, that the attorney must account for his dealings with the person’s property, that its value may decline unless managed prudently, that there is the possibility the attorney could misuse the authority and that if capable, he may revoke the continuing power of attorney: Substitute Decisions Act, 1992, S.O. 1992, c. 30, [“SDA”] s. 8(1).
20A person is incapable of managing property if the person cannot understand information that is relevant to making a decision in the management of his property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision: SDA, s. 6.
21The law presumes Jose Pereira was competent at the time he executed the continuing power of attorney in March 2012. A person is entitled to rely upon the presumption of capacity with respect to another person unless he has reasonable grounds to believe the other person is incapable of entering into the contract or of giving or refusing consent: SDA, ss. 2(1), (3).
22The applicant must rebut the presumption of capacity with clear evidence on a balance of probabilities: Lewis v. Lewis, 2019 ONCA 690 at para. 3. The dignity and integrity of the individual depends upon this presumption. Any usurping of an individual’s right to self-determination must be exercised sparingly and only on the basis of clear evidence: Elmi v. Hirsi, 2015 ONSC 6003 at para. 24.
23I acknowledge that the evidence raised by the applicant highlights questions about Jose’s capacity. However, none of the evidence is determinative of the question, even on a cumulative basis. And crucially, none of the evidence raised by the applicant sheds light on Jose’s capacity to make decisions about his property as of March 2012 when he signed the document in favour of Bob.
24The fact that Jose suffered long-term consequences from a serious stroke, had other chronic medical conditions or even that he may have demonstrated symptoms consistent with dementia in the years immediately preceding his death does not establish he lacked capacity: Lewis, at paras. 6, 11; Johnson v. Johnson, 2022 ONCA 682 at paras. 12-13; Starson v. Swayze, 2003 SCC 32, at para. 77.
25There is no assessment by a qualified health care practitioner or capacity assessor that offers an opinion that Jose was incapable in March 2012, or, in fact, at any time since his 1999 stroke. The application included a request for a capacity assessment; however, the applicant told the court she did not pursue that relief in the face of her father’s opposition through Section 3 counsel. In any event, Jose’s passing put an end to any possibility that an assessment would assist the court, either in determining his capacity as of 2024/25, let alone whether it might assist in addressing his capacity years earlier when he signed the POA.
26Similarly, there is very limited medical information that gives the court any insight into Jose’s diagnoses, limitations and the impact, if any, on his ability to manage his property. Again, section 3 counsel reported that Jose would not authorize the release of his records.
27The limited medical records and report from his family physician, Dr. Daniel Leung, filed on the application are inconclusive at best and do not assist the applicant. The information refutes the applicant’s position that her father was incapable of managing his property ever since the 1999 stroke. By report to applicant counsel from July 2022, Dr. Leung noted Jose had been under his care since 1984. The physician explained he had never done a competency test of his patient. However, from a chart review, Dr. Leung noted Jose applied for the disability tax credit in 2001, 2004, 2005 and again in 2012 and 2019 because of mobility deficit and difficulties with dressing, feeding and speech and not because of difficulties with perception, thought, memory or mental function. The physician did not notice any “mental handicap” on Jose’s health assessment in May 2016. He last saw him for a physical complaint in 2019 before the pandemic and Jose’s admission to long-term care.
28The applicant argues there are several discrepancies as between the family physician’s brief report and his records that should cause the court to discount Dr. Leung’s summary of his involvement in her father’s care. This includes that Dr. Leung in fact, identified a “mental function” limitation on the 2012 disability tax credit form contrary to his advice in his letter to counsel. I agree that this form indicates the opinion of a qualified health care provider that Jose was markedly restricted in performing mental functions necessary for everyday life since his 1999 stroke. This is also information from the year in which Jose signed the power of attorney in favour of Bob. However, a limit to mental function that may entitle one to a tax credit does not automatically translate to a determination of incapacity to manage one’s property as defined by the Act. This is not a capacity assessment. The physician did not testify. He was not asked to clarify this apparent inconsistency or to explain what the limit to mental function might signify, if anything, in terms of his former patient’s capacity at that time. In any event, discrediting this physician’s information fails to advance the applicant’s onus to provide compelling evidence of incapacity. This physician advised he had no relevant information. This court cannot decide the question based on speculative inferences to be made from an untested record.
29The fresh evidence does show there does not appear to be a serious dispute that Jose was in cognitive decline at the time of his admission to long-term care in March 2022, with an MMSE score of 7/30. This is consistent with Section 3 counsel’s advice to the court about her difficulties in obtaining instructions. But again, while this is evidence of some significance to the question of capacity, it is not determinative. Further, the court cannot use this finding from 2022 or more recent concerns from 2025 to reason back by a decade to conclude that he was therefore incapable at the time he signed the 2012 power of attorney.
30The court does not lightly discount the circumstances in which Bob was described to have moved into their father’s house and assuming responsibility for managing his father’s property. However, with the application commencing over 10 years after that event, it seems it was a challenge to marshal reliable and credible evidence that would assist the court in determining whether the 2012 power of attorney or alleged gifts and other benefits were made in suspicious circumstances. The affidavits by Grace and other family members regarding Bob’s poor character and past dishonesty was largely hearsay or did not inform the issues on this application beyond inviting innuendo and speculation. Jose gave inconsistent information in 2024 about his understanding and intentions, but again, this does not assist the court in determining his capacity in March 2012.
31It is unfortunate that neither Jose’s estate lawyer nor that lawyer’s file were available as likely the best opportunity for information relevant to his capacity in March 2012. Although the lawyer’s file could not be produced, the respondent urged that the court could infer from the established relationship between Mr. Reis and Jose that the lawyer would not have permitted Jose to execute the document if he had concerns about his client’s capacity to manage his property. I am not prepared to make such an inference on this record. However, I acknowledge this is not a scenario where the power of attorney was drafted by a lawyer who was unfamiliar with the grantor. This was prepared by the same lawyer who historically prepared Jose’s estate planning documents.
32In summary, while Jose’s health and the circumstances in which he signed the power of attorney raises questions, it is not the clear and compelling evidence required to displace the presumption of capacity or to declare the 2012 power of attorney invalid. The similar limitations and gaps in the evidence prevent the court from considering the additional/alternative remedies sought, including invalidating the alleged gifts or purchases because of undue influence.
2. Should the respondent be required to pass accounts?
33While the siblings disagree about much, there is no dispute that Jose relied upon his family for much of his daily activities after his 1999 stroke, including his finances and banking. Bob agreed that after the stroke, his father could not do his banking, understand his finances or how to budget beyond that he knew what was coming in and out of his account. The nature of Jose’s limitations in managing his finances are not detailed on this record, but there is no dispute that it was Grace and then Bob who had the responsibility of regular day-to-day access to their father’s banking to manage his pension and expenses. At the very least, even if Jose retained ability to attend to some functions regarding the management of his property after his 1999 stroke, others attended to financial activities on his behalf and at his direction, although the extent of that direction over the ensuing years is in question.
34Grace seeks an order requiring Bob to pass his accounts in respect of his duties as their father’s power of attorney for property from March 1, 2011, being a year before Jose signed the power of attorney in favour of Bob.
35Bob opposes the request to pass accounts because it is an unnecessary expense for their father’s modest estate. He submits he has not even claimed an attorney fee. He is concerned his sister’s request is motivated only by hostility and suspicion will be a further instrument of potential abusive conduct. He reminds the court that Grace does not have standing to request the passing of accounts as of right. He also submits an attorney need only account for any period following deemed incapacity of a grantor or where there are reasonable grounds to believe the grantor was incapable.
36An additional procedural consideration arises with the death of the grantor during this proceeding. I am satisfied the court can nevertheless require an attorney to pass accounts. The court’s jurisdiction to order that attorney accounts be passed pursuant to s. 42 of the SDA does not depend upon whether the grantor becomes incapable but whether the power of attorney provides that it can be exercised during a period of the grantor’s subsequent incapacity: Stickells Estate v. Fuller, [1998] O.J. No. 2940 (Gen. Div.); De Zorzi Estate v. Read, 2008 CarswellOnt 1330. Jose’s 2012 power of attorney expresses the intention that the authority given to Bob may be exercised during Jose’s incapacity to manage property.
37My reasons shall next explain why I find the applicant has raised a sufficient concern regarding management of her late father’s affairs that warrants an accounting.
38This applicant does not have a right to request a passing of accounts and must first seek leave of the court: SDA, s. 42(4)6. Even if a person has standing to apply under s. 42(4), the passing of accounts remains in the court’s discretion.
39When considering whether to grant leave, the court must be convinced that the person seeking leave has a genuine interest in the grantor’s welfare; and a court hearing the application under s. 42(1) may order the attorney or guardian to pass his accounts: Hutter v. Hutter, 2019 ONSC 2173 at para. 42; Lewis v. Lewis, 2020 ONCA 56, at para. 4.
40Factors a court considers in exercising its discretion include the extent of the attorney’s involvement in the grantor’s financial affairs and whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs to warrant an accounting: Dzelme v. Dzelme, 2018 ONCA 1018 at para 7. There must be clear and compelling evidence of mismanagement, theft or financial abuse. It requires the applicant to present not simply suspicious circumstances suggesting undue influence but clear and cogent evidence of wrongdoing reflective of the seriousness of the allegations being made: Nguyen-Crawford v. Nguyen, 2010 ONSC 6836 at para. 117.
41I am satisfied the applicant had a genuine interest in the grantor’s welfare. The applicant is one of the deceased’s children. She is a beneficiary of his estate. She had a genuine interest in her father’s welfare and in ensuring that his assets were not inappropriately depleted by the respondent: Hutter, at para. 43.
42I am satisfied there is cogent and compelling evidence that raises concerns of mismanagement above mere suspicion.
43The applicant explained she went to the bank in 2022 after her father’s admission to long-term care. She said she learned for the first time that her brother had removed her from the joint account after their father signed the 2012 power of attorney. The applicant was able to obtain records from that joint bank account for the period of April 1, 2015 to October 18, 2023. The record does not explain the sequence of events, but the court understands the applicant then retained a third party to undertake an informal estate accounting based upon those partial bank records and the estimated value of Jose’s Strathroy home.
44Over that 8-year period, it showed Jose had total income receipts of $181,934.65 and total income disbursements of $104,124.48; total capital receipts of $12,790.76 and capital disbursements of $5,361.30. His cash on hand as at October 2023 was $3,099.68. His son Bob had total debits from his father’s account over this same period in the amount of $92,909.27. Those total debits are over two times the estimated care and management fees Bob would be entitled to claim as attorney on this informal accounting.
45I am also satisfied the nature and extent of these disbursements require further explanation in the context of his standard of living, obligations and sufficiency of his property and means to provide for the expenditures for his son and son’s partner and her family living in the home without paying rent. Review of the account demonstrates Jose relied on a modest fixed income comprised of CPP and OAS. The $65,000 mortgage payment for the truck that started in 2013 was a significant recurring expense in the context of his limited income. Debits by Bob on his father’s account show frequent and regular grocery, restaurant, hardware, building supply, gas, veterinary and pet supply, Bell Mobility, Service Ontario, credit card payments and retail expenditures. There are also general unexplained cash withdrawals in various increments of $100 up to $2,000. These frequent expenditures and debits are difficult to understand for a single man in Jose’s circumstances, who by all accounts largely lived confined to the basement of the house because of his physical limitations.
46Bob claims the financial arrangements for his trucks were made with his father’s knowledge and agreement and were in the nature of gifts. Grace is skeptical that these arrangements were made with her father’s understanding. She submits the terms of their alleged agreements are implausible. It makes no sense that father and son would agree to finance Bob’s second truck purchase by Jose paying the lease for the first half and Bob paying the expense for the second half.
47Grace also raised concern about amounts of cash that Jose kept in a safe and in a drawer in the house, both of which had disappeared. Affidavit evidence claimed to note Bob’s partner paying for groceries and other purchases with amounts of cash. Bob explained that after their mother died, his father told him to take the balance of the cash in the safe that was set aside for their funerals to buy a pool and hot tub. However, Bob denied knowing of any other significant amount of cash that was kept in the house. I agree that Grace’s estimated assertion that there would be approximately $36,000 in a drawer to be vague, remote and speculative, particularly where it is based on her recollection of circumstances before 2009.
48However, I do find the truck expenses and other expenditures in and around the home, including the financing of another hot tub that led to the registration of an $11,000 security interest on the home raises reasonable questions about Bob’s management of his father’s finances; whether Bob’s role as an attorney with fiduciary responsibilities was regularly in conflict with his self-described role as the “baby” of the family who was “everything.”
49Bob insisted the expenditures on the trucks, house and other benefits like the purchase of the pool and hot tub were his father’s choice, because “he just wanted to give me everything he could” and “he enjoys spoiling me.” Perhaps so, but the rate of those expenditures in proportion to his father’s property asks whether Bob as his father’s attorney was in a position to accept such gifts or advantages.
50Section 3 counsel also supported an order requiring Bob to pass his accounts pursuant to his obligations under s. 32(1) and (6) of the SDA. Although section 3 counsel no longer has standing in this proceeding because of Jose’s death, the reasons for such an order remain. Counsel reported Jose was unable to give his position regarding the transactions in issue. He expressed a belief that all the transactions were made for his benefit but was unable to explain how. For example, he believed the truck was bought for him and belonged to him, which is inconsistent with the facts. He was unaware that he had outstanding bills and that he did not have much surplus income. He told Section 3 counsel that Bob told him about his finances and gave him money if he needed money. Counsel reported Jose did not have a consistent understanding of the arrangements for his house. He variously stated the house was his, then that he had sold it and then that it was in Bob’s name. He previously told counsel that he knew about the renovations and paid for them because the house was still in his name, even though the house was going to Bob.
51Bob has also engaged in conduct that brings the overall management of his father’s affairs into question. In 2012, he contacted Scotiabank/Chubb Insurance about an insurance policy in his father’s and Grace’s names. He attempted to impersonate his father while requested the policy be canceled. Bob denies that he impersonated his father and claims he called to cancel the insurance because his father wanted him to. This does not explain why he would try to mislead the financial institution by impersonating his father, particularly when he was authorized to act as his father’s attorney. He has also given conflicting versions of why he undertook further renovations in the basement after his father was admitted to long-term care. He first claimed there was a heavy rainfall that damaged the basement. He later claimed it was a burst water tank. In either event, he did not put the ostensible loss through insurance because he did not think of it.
52The evidence of the Rogers communications account in Jose’s name is further cogent evidence that questions the management of Jose’s finances for his benefit. The partial records from February 2024 show an account that was in arrears for non-payment. The account history includes the rental of two cable boxes, a high-speed internet plan with unlimited data and a cable TV package at the approximate rate of $174.99 per month. Bob explains that he opened his own service as of June 2023 and that Rogers had failed to follow his instructions regarding the closure of his father’s account. These circumstances still support the request for a passing of accounts, in any event of this partial explanation, which also does not explain how all these services previously benefitted his father.
53Notwithstanding the questions surrounding Jose’s capacity, it cannot be seriously disputed that on his own evidence Bob acted as de facto attorney for property since he was appointed by his father in March 2012. He had regular access to and use of Jose’s bank account. As attorney he benefitted from a mortgage on his father’s home to finance the purchase of a truck, another significant purchase was registered against the house, and renovations to the house. There are significant personal withdrawals from his father’s bank account for transactions that do not have obvious direct benefit to Jose. While this represents withdrawals over an 8-year period, and there may be a reasonable explanation for many of the expenses, to give a sense of proportionality, I note the total amount withdrawn is more than double what he would have been entitled to charge as a management fee in the same eight-year period.
54An estate trustee is required to keep and, if required, to pass the records of an estate he administers: Rules of Civil Procedure, rr. 74.17, 74.18. Notwithstanding the extended period, I am satisfied it is appropriate to require the accounts be passed from March 23, 2012, being the effective date of the power of attorney and when Bob began to act on that authority, until Jose’s passing in April 2025. I appreciate the applicant requests an accounting from 2011, or perhaps earlier. However, it was not clear from this record that Bob informally acted as attorney before that date.
55I am mindful that I have not found the applicant established Jose was incapable at the time he executed the March 2012 power of attorney or at any time prior to his passing in April 2025. I also recognize that courts have distinguished between an attorney who assists with the execution of decisions of the grantor and an attorney who makes the decisions and carries them out: Hutter, at para. 50. However, I am not persuaded that imposing a duty to account upon Bob in these circumstances casts an impossible burden upon him. His father entirely depended upon him for his banking. Passing accounts does not require Bob to account for decisions over which he had no influence or for transactions that he did not know of, cannot explain or did not implement in whole or in part. The applicant has already demonstrated what is possible through the informal accounting done for the period of 2015 to 2023 from the records she was able to access. To the extent any procedural difficulties are encountered the parties may seek directions within that proceeding.
Disposition
56The application for a declaration terminating the power of attorney for property in 2012 because of incapacity is dismissed.
57The respondent Robert Pereira shall pass his accounts in respect of the continuing power of attorney for property dated March 23, 2012 in respect of Jose Maria Pereira for the period beginning March 23, 2012 until Jose Pereira’s death in April 2025.
58The balance of the application is dismissed.
59Success on this application was divided. The parties are encouraged to resolve costs. The parties variously filed bills of costs or outlines on previous appearances in the matter; however, if costs are unresolved, the parties are directed to ensure they each file a fresh bill of costs addressing all steps to be accounted for in this proceeding.
60If costs are not resolved, Ms. Charlton should first deliver submissions as to the costs of s. 3 counsel and/or the estate by June 19, 2026. The applicant shall deliver her written submissions by July 6, 2026, and the respondent shall deliver his written submissions by July 17, 2026. Submissions are limited to no more than three pages, excluding bills of costs and offers to settle. There is no reply without leave.
Justice K. Tranquilli
Released: June 1, 2026
CITATION: Perriam v. Pereira, 2026 ONSC 3180
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRACE PERRIAM
Applicant
– and –
JOSE MARIA PEREIRA, GEMMA CHARLTON, in her capacity as the interim Estate Trustee for the Estate of Jose Maria Pereira and ROBERT PEREIRA and THE PUBLIC GUARDIAN AND TRUSTEE
Respondents
REASONS FOR JUDGMENT
Justice K. Tranquilli
Released: June 1, 2026