Citation: B.F.H. v. D.D.H., 2010 NSSC 340
Date: 20100907
Docket: Hfx. No. 304990
Registry: Halifax
Between:
B. F. H.
Applicant
v.
D. D. H.
Respondent
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice Arthur J. LeBlanc.
Heard: March 11, 2010, in Halifax, Nova Scotia
Counsel: Ian Dunbar, for the applicant
Jeanne Desveaux with Ron Meagher, for the respondent
By the Court:
[1] J. H. is 85 years of age and resides at *, Nova Scotia. In March 2010, by order under the Incompetent Persons Act, R.S.N.S. 1989, c. 218, the court found her to be incompetent to manage her own affairs and appointed the Bank of Nova Scotia Trust Company as guardian of her estate and the respondent, D. D. H., as guardian of her person. The respondent had previously been appointed attorney under a power of attorney. The applicant seeks the removal of the respondent as the attorney and restitution, on behalf of his mother, for alleged inappropriate transactions that took place while the respondent was the attorney.
[2] Mrs. H.’s husband, T. H., died in May 2004. On July 6, 2004, Mrs. H. appointed the respondent as her attorney pursuant to an enduring Power of Attorney. The Power of Attorney conferred on the respondent the right to negotiate cheques and deposits, the sale of real property and authorized her to act during any period of any legal incapacity of Mrs. H..
[3] On March 19, 2005, Mrs. H. wrote a cheque in favour of the Respondent for $25,000. The respondent subsequently utilized the power of attorney to write two cheques to herself from Mrs. H.’s account, each in the amount of $6000, on March 29 and September 15, 2005. Each of these cheques had the notation “with love from mom”. One contains the notation JABBA II, which the applicant says apparently relates to a construction project on the respondent’s property. The respondent also made purchases on Mrs. H.’s behalf under the Power of Attorney. The payments came from Mrs. H.’s account. It is common ground that some purchases and expenditures that were disputed on the basis that they were made primarily for the respondent’s benefit have been resolved and the respondent has reimbursed Mrs. H. for them.
[4] When it became impractical for her to remain in her house, but before the determination of incompetency was made, the respondent arranged for the selling of Mrs. H.’s house. The respondent’s solicitor proposed that the applicant and the respondent each take $250,000 from the proceeds of the sale as an advance on their respective inheritances. The applicant did not agree to this proposal, and communicated his position to the respondent’s counsel. The respondent advanced herself $200,000 as an advance on her inheritance on September 4, 2008. This advance was secured by a non-interest-bearing demand promissory note, payable at the demand of Mrs. H.. There would be a proportional reduction of the respondent’s inheritance.
[5] After the house was sold, Mrs. H. relocated to an apartment, and subsequently to *, an assisted living facility in *, NS. After she moved, certain pieces of furniture were placed in storage, while others were retained by the applicant. The residence was eventually sold for $695,000. After accounting for closing costs, real estate commissions and other adjustments, Mrs. H. received $656,147.00.
[6] The applicant opposed the advance payments suggested by counsel for two reasons: first, he claimed, the entire proceeds might be required to meet the costs for Mrs. H. to reside at *, and second, the sale proceeds did not belong to himself or the respondent, but to Mrs. H.. The respondent says Mrs. H.’s monthly income stream is sufficient to meet her current and future care needs, and that the advance will reduce the cost of administering the estate.
[7] In her defence, the respondent points out that after the Power of Attorney came into effect, Mrs. H. also made gifts to the applicant, writing the cheques personally in some instances, and on other occasions asking the respondent to write the cheques for her. She submits that, since the applicant is not offering to return these gifts or payments to Mrs. H., if the Court determines that these payments are appropriate, then the applicant’s claim that the payments in her favour should be returned is fundamentally undermined.
[8] The respondent says the applicant lacks standing to challenge the amounts she received from Mrs. H. before she was declared incompetent. She argues that the Powers of Attorney Act, R.S.N.S. 1989, c. 352, provides the Court with jurisdiction after the donor becomes incompetent, but not before. Section 5 of the Act sets out the powers of a judge where a donor has become legally incapacitated. It provides, in part:
Power of judge
5 (1) Where a donor of an enduring power of attorney becomes legally incapacitated, a judge of the Trial Division of the Supreme Court may for cause, on application,
(a) require the attorney to have accounts passed for any transaction involving the exercise of the power during the incapacity of the donor;
(b) require the attorney to attend to show cause for the attorneys failure to do anything that the attorney is required to do as attorney or any order made pursuant to this Act;
(c) substitute another person for the attorney;
(d) allow or disallow all or any part of the remuneration claimed by the attorney;
(e) grant such relief as the judge considers appropriate;
(f) make such provision respecting costs as the judge considers appropriate.
Order to pass accounts
(2) Where an attorney is ordered to have accounts passed, the attorney shall submit the accounts for approval to the Court or, where a judge of the Court so orders, to the Public Trustee at such intervals as the judge may order and, when approved, the attorney shall file the accounts with the prothonotary of the Supreme Court for the county where the application is heard.
....
Application for accounting
(5) Nothing in this Section prevents a donor from applying for an accounting by the attorney, if the donor has the legal capacity to do so. R.S., c. 352, s. 5.
[9] I am satisfied that the applicant has standing for the period after Mrs. H.’s loss of capacity. The issue remaining is whether he has standing in relation to events prior to Mrs. H.’s incapacity. He says he is bringing the action on behalf of his mother. He has no appointment as guardian under the Incompetent Persons Act, and Mrs. H. is not named as a party.
[10] Where a donor has become legally incapacitated, as Mrs. H. is on account of the order under the Incompetent Persons Act, subsection 5(1)(a) of the Powers of Attorney Act permits the court to “require the attorney to have accounts passed for any transaction involving the exercise of the power during the incapacity of the donor.” According to the respondent, the period for which an accounting is required is from the date the Court determines that Mrs. H. had become incompetent or incapable of managing her affairs. Prior to that date, the applicant is not entitled to seek any accounting or to otherwise make any claim. Any accounting prior to the date of incapacity is owed only to the applicant. However, in this case, the applicant does not seek a passing of accounts as described in s. 5(2). He seeks the removal of the respondent as attorney and restitution for alleged improper transactions. The issue which remains to be resolved is that of restitution. The respondent has voluntarily stepped aside as attorney and guardian of the estate of Mrs. H., in favour of the Bank of Nova Scotia Trust Company.
[11] The applicant contends that although passing of accounts under s. 5(1)(a) would apply only to the post-incapacity period, the court is entitled to review all transactions made by the respondent after she was appointed as attorney on July 6, 2004. His basis for this argument is that the respondent’s fiduciary obligation arose as of that date, rather than the date of incapacity, and continued throughout the period of her appointment as attorney. He cites Frame v. Smith, [1987] 2 S.C.R. 99, at para. 39, where Wilson, J., dissenting, said:
Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:
(1) The fiduciary has scope for the exercise of some discretion or power.
(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.
(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.
[12] The applicant asserts that all of these characteristics are present. First, the power of attorney gave the respondent control over Mrs. H.’s affairs. Had she wished, the respondent could have removed all of the funds from her mother’s account. Second, Mrs. H., who had recently lost her husband, was vulnerable to any action taken by the respondent. Finally, he submits, the respondent had the scope to exercise her discretion or power. The applicant refers to MacGrotty v. Anderson (1995), 9 E.T.R. (2d) 179, where the court said, at para. 20:
There is no disagreement between the parties with respect to the law.
1) An adult child who is granted a Power of Attorney in respect of a parent's affairs is placed in a fiduciary relationship and bears the burden of disproving an allegation of undue influence when that Power of Attorney is used to benefit the grantee at the expense of the grantor....
2) If the effect of the gift was to dispose of the donor's only asset of value and to pre‑empt the devolution of his estate under his will or on his intestacy, the degree of understanding required is as high as that required for a will and the donor must understand the claims of all potential donees and the extent of the property to be disposed of....
3) The presumption of advancement that arises on a transfer from husband to wife is rebutted where the circumstances indicate that the transfer was for convenience only.... A fortiori where the transfer, from father to daughter, is effected by the transferee utilizing a Power of Attorney previously granted as a matter of convenience rather than with an intention of making an absolute gift, the presumption of advancement is rebutted.
4) Where a gift is alleged to have been made by a donor since deceased, the evidence must be examined with care, even with suspicion, though it need not necessarily be corroborated....
[13] The applicant also maintains that it is not necessary to determine whether the donor of the power of attorney was incapacitated to find a fiduciary relationship. Thus, in Rosenberg v. Gold, 1993 CarswellOnt 2225 (Ont. Ct. J. (Gen. Div.)), the court determined that the attorney had a fiduciary relationship with the donor, requiring the attorney to act in the best interests of the donor.
[14] The respondent says the fiduciary relationship only arises after the donor is incapacitated. Prior to that time, only the donor can ask for an accounting from the attorney under the Act. The respondent maintains that only when Mrs. H. became incompetent did the power of attorney become effective. She relies on a 2008 report of the Western Canada Law Reform Agencies entitled Enduring Powers of Attorney: Areas for Reform. This report discusses two types of powers of attorney: the “springing” power of attorney and the enduring power of attorney. She refers to the following passage, at para. 21:
... A continuing power of attorney takes effect prior to the donor’s capacity and continues in effect after the donor’s incapacity. A springing power of attorney is dormant until triggered by the donor’s incapacity. Both types of power allow an attorney to make property and financial decisions on behalf of an incapacitated donor. The legislation in British Columbia currently provides for continuing EPA’s but not for springing EPA’s. In that province, springing EPA’s are recognized due to case law...
[15] The applicant says Mrs. H. granted the respondent a continuing power of attorney. The respondent insists that while Mrs. H. had capacity she owed an accounting to Mrs. H. and to no one else. Until Mrs. H. became incapacitated, she says, she was in an agency relationship with her mother, and was not acting in the role of attorney. At this time she was only accountable to her mother, not to the applicant.
[16] The applicant argues that the attorney’s fiduciary obligation arises not from the use of the power of attorney but from the relationship between the attorney and the donor. In Fraser (Guardian ad litem of) v. Fraser, [2000] B.C.J. No. 224, 2000 BCSC 211, the attorney invested money without the knowledge or consent of the donor, his mother. The investment was lost and the attorney’s mother sued him for conversion, negligence and breach of fiduciary duty. The Court held that the defendant had usurped his mother’s continuing interest and involvement in her own affairs. He had acted without reasonable care. Finally, the Court held that the defendant breached a fiduciary duty, which arose not only from the circumstances, “but also from the power of attorney whether or not it was actually used in the transaction” (para. 26). It appears to me that the situation in Fraser was different from the present one, where a mother gave her daughter a cheque for $25,000, and where she was also giving significant amounts of money to her son, the applicant.
[17] In Lau v. Lee, [1994] B.C.J. No. 1770, the parties purchased an investment property and later decided to end their business relationship. The plaintiff executed a power of attorney naming the defendant as his attorney for the purpose of selling the property; he later agreed to sell his interest to the defendant for $380,000. Shortly thereafter, the defendant sold the property at a profit. The court held that the power of attorney had created a principal-agent relationship, and that there had been a breach of the resulting fiduciary duty. In negotiating with the principal for purchase of his interest, the defendant owed him a fiduciary duty to disclose all material information. The price offered by the third party was material information that ought to have been disclosed. In considering the law relating to fiduciary duty, the court said, at paras. 36-37 and 39:
36 A leading authority on the defining features of a fiduciary relationship is Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574. As pointed out by Sopinka, J. at pp. 596‑8, there are some traditional relationships, including that of principal and agent, which are generally recognized to give rise to fiduciary obligations. When dealing with one of these traditional relationships, the characteristics or criteria for a fiduciary relationship are assumed to exist unless, in special circumstances, they are shown to be absent. In my view, there are no such special circumstances present here to warrant departing from the general rule that the agency relationship created by a power of attorney creates fiduciary obligations.
37 On this analysis, it is unnecessary to decide whether a fiduciary obligation arose quite apart from the power of attorney, having regard to the three general characteristics of a fiduciary relationship identified by Wilson, J. in Frame v. Smith, [1987] 2 S.C.R. 99, at p. 136, in a passage subsequently cited in Lac Minerals, supra, at p. 599 (per Sopinka,J.) and in Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534, at pp. 543‑44 (per McLachlin, J.).
...
39 Where a fiduciary obligation arises out of an agency relationship, there is an obligation upon the agent to disclose all material information. The duty is described in Bowstead on Agency (1985) 15th ed., p. 146, in these terms:
No agent may enter into any transaction in which his personal interest might conflict with his duty to his principal, unless the principal, with full knowledge of all the material circumstances and of the exact nature and extent of the agent's interest, consents.
[18] As with Fraser, I am not satisfied that the circumstances here are comparable to Lee, where it was clear that the defendant had withheld material information about the transaction.
[19] The essential issue is the jurisdiction of the court in relation to actions taken by the respondent prior to the date her mother became incapacitated. As has been noted above, the applicant submits that I should read the Powers of Attorney Act so as to include such jurisdiction. The respondent argues that the Act limits the court to reviewing transactions that occurred after Mrs. H.’s incapacity. As has been noted above, section 5 of the Act describes the court’s jurisdiction in dealing with claims for accounting and other matters involving a attorney. Under s. 5(1), where a “[w]here a donor of an enduring power of attorney becomes legally incapacitated,” a judge may, among other things, “require the attorney to have accounts passed for any transaction involving the exercise of the power during the incapacity of the donor,” (para. (a)), or “require the attorney to attend to show cause for the attorneys failure to do anything that the attorney is required to do as attorney or any order made pursuant to this Act” (para. (b)). Paragraph 5(1)(e) permits the judge to “grant such relief as the judge considers appropriate.”
[20] The respondent acknowledges that an attorney has various duties by virtue of the appointment, including duties to act within the scope of the power, to exercise reasonable care and skill, not to delegate their authority unless expressly authorized by the donor, to avoid conflicts, to act in the best interest of the donor, and not to profit from the donor’s property. She argues, however, that these obligations are dormant until the attorney commences the role of attorney. Consideration of actions before commencing the role of attorney would thus be excluded from the court’s jurisdiction. She relies on Wright v. Cournoyer, 2003 NSSC 92, where Edwards, J. concluded that the court did not have the power to order an accounting under section 5 because the donor was never incapacitated.
[21] There are no cases considering whether the court can order the return of property transferred prior to the incapacity under section 5. Interpreted expansively, section 5 could provide the court with the power to order any relief that the judge considers appropriate, regardless of when the impugned conduct occurred. While s. 5(1)(a) requires the attorney to have accounts passed for any transaction involving the exercise of the power after the donor’s incapacity,
s. 5(1)(e), which permits the judge to “grant such relief as the judge considers appropriate,” does not contain such a time limit. This interpretation, advocated by the applicant, would encompass conduct both before and after Mrs. H.’s incapacity.
[22] The respondent argues for a more restrictive approach to section 5, by which the Court would be limited under s. 5(1)(e) to issues relating to breaches by the attorney arising under other provisions of the statute, limiting its application to actions occurring after the donor’s incapacity. By this approach, any of the powers exercised under s. 5(1) would be interpreted in light of the limiting time period in s. 5(1)(a).
[23] The applicant says the limiting words in s. 5(1)(a) require the attorney to provide an account to the donor while the donor is competent. The applicant does not seek an accounting, having put forward evidence of transactions for both parties without a court order, as the respondent voluntarily provided an accounting. Therefore, he submits, the court is not limited by s. 5(1)(a) in applying s. 5(1)(e). If the impugned conduct precedes the date of incapacity, then, the court should act to address the breach of any obligation, the donor not being capable of seeking redress.
[24] The Act does not stipulate who has standing to bring an application pursuant to s. 5(1). Subsection 5(5) indicates that nothing limits the “donor from applying for an accounting by the attorney, if the donor has the legal capacity to do so.” The Act does not specify who else may apply for a passing of accounts from the attorney. The only condition precedent for an application pursuant to s. 5(1) is that the donor has become legally incapacitated, which has occurred here. As such, the applicant has standing to bring the application. In support of this conclusion, I note Burns v. Burns, 2002 NSSC 145, where a son sought an accounting by his siblings and his mother, who were attorneys for his father, and there was no issue as to his standing to do so.
[25] Whether the Court has jurisdiction to grant the orders sought is a different matter. The applicant does not seek a passing of accounts. He seeks restitution, on behalf of his mother, for alleged inappropriate transactions that took place while the respondent was the attorney. If the applicant were seeking a passing of accounts there would be a jurisdictional issue. Subsection 5(1)(a) permits the Court to order a passing of accounts only for transactions that took place after the donor was declared incompetent. The use of the words “during the incapacity of the donor” can only be interpreted as limiting the scope of transactions for which a passing of accounts can be requested. In my view, this subsection ousts any common law or equitable jurisdiction the Court had, pursuant to s. 3 of the Judicature Act, R.S.N.S. 1989, c. 240, to order a passing of accounts for any and all transactions of the attorney.
[26] In this case, a voluntary passing of accounts was given by the respondent to the applicant. If this had not been done, the wording of s. 5(1)(a) could have created an issue. If in the period before a donor is declared incompetent the donor is in fact incompetent or unable to properly scrutinize the actions of his/her attorney, and an attorney uses his/her power to commit an illegitimate transaction, s. 5(1)(a) could effectively immunize the transaction from any passing of accounts after the donor is declared incompetent. If there is no passing of accounts then there is no ability, without the consent of the attorney, for a court to review the legitimacy of such transactions. In this case, however, the applicant is not seeking a passing of accounts.
[27] I am satisfied that the Court has jurisdiction to grant the orders sought. Subsection 5(1)(c) gives the Court the power to “substitute another person for the attorney” where cause is shown. Subsection 5(1)(e) gives the Court the power to “grant such relief as the judge considers appropriate” where cause is shown. These subsections are not limited by the phrase “during the incapacity of the donor.” When these subsections are read in the context of the whole section, which they must be, it is clear that they are not limited to transactions that took place after the donor was declared incompetent.
[28] When a donor signs a power of attorney, this establishes a fiduciary relationship between the donor and the attorney from the moment of signature. All transactions made by the attorney may be reviewed by the court pursuant to applications under s. 5(1) of the Act. This does not mean that an attorney cannot be given a gift by the donor, but it does mean that the attorney must take precautions to ensure that there is proof of the donor’s intent.
[29] The respondent’s position is that her mother made gifts to her on three occasions, totalling $37, 000.00. She adds that Mrs. H. treated the applicant in the same manner. The applicant argues that in order for the respondent to retain the money, the donor’s intention must be established beyond a reasonable doubt. He relies on Johnstone v. Johnstone (1913), 12 D.L.R. 537 (Ont. S.C.A.D.), where the court stated that “[i]n weighing the conflicting evidence, it is not sufficient that the preponderance of evidence may turn the scale slightly in favour of a gift. The preponderance must be such as to leave no reasonable room for doubt as to the donor’s intentions. If it falls short of going that far, then the contention of a gift fails” (p. 539).
[30] Johnstone was followed in McFaull v Kidd (2007), 305 Sask. R. 296, 2007 CarswellSask 713, 2007 SKQB 402 (Sask. Q.B.) and Kibsey Estate v. Stutsky (1990), 63 Man. R. (2d) 34, 1990 CarswellMan 193 (Man. C.A.). In Kibsey the court repeated the principle that “the onus of proof is upon the defendant to prove a valid gift inter vivos ... as to the standard of proof necessary to prove the gifts ...it must be such as to leave no reasonable room for doubt as to the donor's intentions. If it falls short of going that far, then the contention of a gift fails” (paras. 9-10).
[31] Although Mrs. H. was only diagnosed with Alzheimer’s disease in December 2006, the applicant stated that after his father’s death in June 2004 she became increasingly dependent on a personal care worker. She experienced memory and health problems, including muscle pain, diabetes and stomach problems. He said she frequently forgot recent conversations and that her personal care worker had to ensure that she took her medication. In January 2005 it was determined that Mrs. H. could not continue to live in her residence.
[32] The applicant said Mrs. H. became increasingly dependent on both himself and the respondent to handle her financial affairs after the relocation. The respondent filed her income tax returns for 2004 and 2005. He said that in May 2005, the respondent wrote in an e-mail to him that Mrs. H.’s “retention span of conversations these days is very limited.” In July 2005, the respondent
e-mailed the applicant indicating that she was considering a proposal to sell the residence. Although Mrs. H. appeared to be unaware of the proposed sale of the property, the respondent stated, “I call her daily and because of her illness she remembers as you well know what she wants to.” In another e-mail, dated December 30, 2005, the respondent stated, “I am getting quite concerned about mom and her memory. Don’t you find she retains very little these days ... I call her every evening and each time she says that it is nice to hear from me finally... she says she never hears from you and I know that is not true.”
[33] Although there is no supporting medical evidence, the applicant maintains that his mother has been incapable of managing her own affairs since at least August 2004. The respondent answers that Mrs. H. lived independently, with the assistance of a caregiver, and handled her own affairs from the time that Mr. H. died in 2004 until she was hospitalized in the fall of 2006. The respondent states that, although her mother’s mental capacity started to diminish, she did not automatically assume control, but assisted her at arm’s length and allowed her mother to live in the manner to which she was accustomed.
[34] The respondent said she did not interfere with her mothers spending or gift-giving, that she accepted gifts from her mother and that her mother continued to write and sign cheques after the granting of the power of attorney. She said her mother offered to purchase her a new vehicle, but that she declined this and accepted a loan, which was repaid. She also said the applicant did not object to gifts from his mother. She also claims that the applicant has personal property of Mrs. H., including ivories, along with an electric stair climber and artwork.
[35] The respondent argues that although the applicant now alleges that Mrs. H. was incompetent to manage her affairs as far back as 2004, in mid-2006 he attempted to arrange for her to sign a new power of attorney, making him attorney along with the respondent. A medical report dated February 19, 2009, indicated that the applicant was questioning Mrs. H.’s state of health in 2004 and that he was alleging that his mother had signed documents that were not in her best interests in the summer of 2004. Mrs. H. had experienced falls earlier in 2004, yet he noted that she had a normal MMSE 28/30 with 3/3 recall as of September 2004.
[36] I am satisfied beyond a reasonable doubt that the March 2005 cheque to the respondent for $25,000 is a valid gift. Although the respondent did not offer specific evidence as to the basis for this gift, I find that such a gift was consistent with the monetary gifts Mrs. H. was making to the applicant, either directly or by paying a car loan, of which there was also evidence. The cheque is in Mrs. H.’s handwriting and this provides clear indication of her intentions. The fact that Mrs. H. prepared this cheque, while the respondent had previously signed cheques on her account under the power of attorney, is a further indication that Mrs. H., acting on her own, intended to make a gift to the respondent. I also find, based on all the evidence, that at the date of this cheque, Mrs. H. was capable of managing her own affairs.
[37] The reasons for finding that the $25,000 cheque was a valid gift are lacking in respect of the two payments of $6000, written on March 22, 2005, and September 29, 2005. They were completed by the respondent in her own favour. Although each cheque contains the inscription “with love from Mom,” this does not satisfy me of intention beyond a reasonable doubt. There is no evidence of surrounding circumstances relevant to the drawing of these cheques that allows the Court to say that Mrs. H. fully understood their effect.
[38] Although the evidence does not persuade me to accept the applicant’s contention that Mrs. H. became incapacitated in 2004, I am satisfied that in 2005 the respondent was aware that Mrs. H.’s memory was not as sharp as it had been. Mrs. H. was diagnosed with Alzheimer’s Disease in December 2006. As a result of that diagnosis, arrangements were made for provide her with 24-hour personal and nursing care. I am not satisfied that Mrs. H. fully understood that she was gifting an additional $12,000. In the absence of sufficient evidence, it appears that I should view these two cheques as unauthorized payments to the respondent.
[39] I am satisfied that the advance of $200,000 from the sale of Mrs. H.’s residence was inappropriate and cannot be sanctioned simply because counsel recommended it. I acknowledge that counsel made a similar recommendation to the applicant. It is undisputed that this offer was declined. The respondent did, of course, sign a promissory note, which is non-interest bearing and is payable on demand to Mrs. H.. At the death of Mrs. H., the amount would be deducted from her share of her mother’s estate and the note will be null and void. Simply put, there is no basis to suggest that this was good estate planning.
[40] The applicant asks that the respondent be required to repay all amounts found to have been wrongfully taken from Mrs. H., with interest from the date the amounts were taken. Accordingly, I set aside the purported gifts of $6000 each, and the $200,000 advance in respect of the house. I would invite further submissions from the parties on the issue of interest on the disgorged amounts.
[41] Any furniture items that were removed from the home and which remain in the possession of the applicant or the respondent shall be turned over to the guardian of the estate of Mrs. H..
[42] The applicant seeks costs. Counsel have three weeks to resolve the issue of costs. If they are unable to do so, they may submit their positions in writing.
J.