Supreme Court

SUPREME COURT OF Nova Scotia

Citation:  Withenshaw v. Withenshaw, 2022 NSSC 21

 

Date: 20220125

Docket:  SK No.  475379

Registry: Kentville

Between:

Gary Paul Withenshaw and George David Withenshaw

Applicants

v.

Gail Eileen Withenshaw

Respondent

 

Judge:	The Honourable Justice D. Timothy Gabriel
Heard:	September 21, 2021, in Halifax, Nova Scotia (by parties’ agreement as to the location)
Counsel:	Richard W. Norman, for the Applicants Eugene Tan, for the Respondent

 

 

By the Court:

[1]             As set out in their Amended Notice of Application in Court, filed on April 18, 2018, the Applicants seek the following relief:

(i)        an order requiring the Respondent to account for all assets formerly belonging to the late Doris Kathleen Withenshaw ("Mrs. Withenshaw" or "the deceased”) with which the Respondent dealt pursuant to the Power of Attorney ("the POA") conferred upon her by the deceased;

(ii)        an order requiring the Respondent to make restitution to the estate of the deceased with respect to any money or assets belonging to the deceased which the court determines were improperly taken or used for the Respondent's benefit;

(iii)      prejudgment interest on any funds to be returned to the estate;

(iv)       costs on a solicitor- client basis.

[2]             By agreement, this hearing was bifurcated. The first part, heard March 16 - 17, 2020, dealt with whether the Applicants had established that the deceased (who was the mother of all of the parties) was in a state of legal incapacity at any point during the Respondent's tenure as her Attorney, and if so, when that period of incapacity began. It also dealt with whether "cause" within the meaning of the Powers of Attorney Act, R.S., c. 352, s. 1 (as amended) (“the Act”) had been established by the Applicants, so as to require the Respondent to account to the Court for her stewardship of the assets during the period of her deceased mother’s incapacity.

[3]             In the decision, reported as Withenshaw v. Withenshaw (2020) NSSC 208, ("the earlier decision") I concluded:

128.  Cumulatively, the Applicants have established "cause" sufficient for the Court to require the Respondent to have accounts passed for any and all transactions involving the exercise of the POA during the incapacity of the donor, which is to say from May 1, 2007, to the date of Mrs. Withenshaw’s death on November 1, 2014.

[4]             The resumption of the second part of this hearing has been impacted by multiple outbreaks of the Covid-19 virus, and some adjournments at the behest of the Respondent. The most recent such adjournment occurred after the matter had been set down, with the consent of the parties (in January 2021), to be heard on June 21, 2021. A few days before the matter was scheduled to be heard the Respondent, through her counsel, presented the court with a "note" handwritten by a physician on a prescription pad, which was to the effect that the Respondent was ill and would not be able to attend the hearing.

[5]             When further explanation was required, a letter from a social worker was provided.  This correspondence stated that the Respondent was suffering significant anxiety and mental stress due to the fact that, as the worker had been told, the court had recently "moved the hearing date forward", the Respondent was not prepared for it, and that if the hearing could be adjourned for a month, she would be able to attend and participate.

[6]             Not only did the court not receive any further explanation from the doctor who purported to opine that she was unable to attend and participate on June 21, 2021, the explanation that was provided came from a social worker, whose "opinion" was predicated upon something patently false – the court had not, in fact, scheduled the hearing for a later date and then "moved it up" to June 21, 2021.  Rather, as indicated previously, the date had been set in January with the consent of all parties and their counsel.

[7]             The parties were directed to attend court on the scheduled date, at which time Gail Withenshaw's motion for adjournment would be heard preliminarily, and if unsuccessful, the scheduled hearing would ensue. At least that was the plan. Unfortunately, although counsel for the Respondent attended, the Respondent herself did not. The explanation offered, through counsel, was that the Respondent had attempted to drive to Halifax (the parties had agreed that this portion of the hearing would be heard there), but her anxiety was such that she had to turn around and go back home.

[8]             The Court was faced with a choice between allowing the proceeding to go ahead in the Respondent's absence or granting the adjournment that she sought. At the Court's suggestion, counsel conferred and ultimately agreed to adjourn this matter to September 21, 2021.  The Respondent agreed to pay to the Applicants the sum of $5,000.00 to offset some of their throwaway costs.

[9]             As with virtually every other court appearance in this matter, the Respondent attempted to file some materials well after the filing dates that had been assigned by the court. Within the context of this particular hearing, this late material took the form of a supplementary affidavit, an unsigned copy of which was provided to the court, and to counsel for the Applicants, on September 19, 2021.

[10]         I will return to this further in these reasons.

Background

[11]         The pertinent background has been set forth in the earlier decision. I will repeat only the most essential facts.

[12]         Gary, George, and Gail Withenshaw are siblings, as previously noted. Their mother, Doris Withenshaw, died on November 1, 2014. The Respondent had been the recipient of the Power of Attorney (“the POA”) which is central to this matter. Mrs. Withenshaw's lawyer had prepared it, and it was executed on June 20, 2006.

[13]         Although none of the parties asserted that their mother lacked capacity to execute the POA at that time, it is common ground that, by that date, she was legally blind and suffering from Alzheimer's disease, which was progressive. The evidence is clear that her mental and physical condition continued to decline to the date of her death on November 1, 2014.

[14]         The Applicants have maintained that, at or around the time that the POA was executed, the value of their mother's estate was approximately $320,000.00. After her death, in 2014, they made requests to the Respondent for information about their mother's remaining assets. They did not receive answers.

[15]         In late 2017, not having received any information, the Applicants felt it necessary to commence an application in Probate Court compelling their sister to pass her accounts as Executor of their mother's estate. The information that was provided in response to this application was scant, and completely lacking in any supporting documents such as invoices or bank account statements.

[16]         By March of 2018, the extant information showed that the deceased's estate contained comparatively few assets.  What was left totalled $85,310.78. The bulk of this figure was alleged to be comprised of life insurance proceeds, which, of course, had only been paid to the estate after Doris Withenshaw had passed away. This Application in Court was commenced one month later.

[17]         The estate is not yet closed, and the assets thereof remain undistributed.  The Respondent nonetheless acknowledges that she has taken her Executor’s commission out of the funds that remained in the Estate.

[18]         There are two additional twists. First, it will be recalled that I concluded in the earlier decision that Doris Withenshaw was "legally incapacitated" within the meaning of section 5(1) of the Act, as of May 1, 2007.

[19]         The relevant portions of the Act provide:

3. A power of attorney, signed by the donor and witnessed by a person who is not the attorney or the spouse of the attorney, that contains a provision expressly stating that it may be exercised during any legal incapacity of the donor, is

(a) an enduring power of attorney;

(b) not terminated or invalidated by reason only of legal incapacity that would, but for this Act, terminate or invalidate the power of attorney; and

(c) valid and effectual,

subject to any conditions and restrictions contained therein that are not inconsistent with this Act. R.S., c. 352, s. 3.

...

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,

require the attorney to have accounts passed for any transaction involving the exercise of the power during the incapacity of the donor …

 [Emphasis added]

[20]         The Last Will and Testament of Doris Withenshaw was executed in 2010, over three years after the Court has found that she was "legally incapacitated" for the purposes of the Act. This is the Will that had earlier been provided to Probate Court. It has not been challenged by the Applicants, even though they have been represented by counsel from the outset. It left all of the deceased's estate to be divided equally between her three children.  

[21]         There is another complication.  In the course of hearing this matter, the Court heard evidence that the Last Will and Testament of Doris Withenshaw which predated the 2010 Will, was executed in 2004.  It left only 60% of her estate to be divided equally between her three children.  The remaining 40% was earmarked for a Church, which has not been notified of either these proceedings, or those in Probate Court.

[22]         I touched briefly on this in the earlier decision:

129.  I am well aware that I have concluded that Doris Withenshaw's period of legal incapacity (for the purposes of this proceeding under the Powers of Attorney Act) preceded the execution of her Last Will and Testament by almost three years. It should be borne in mind that the issue of her Testamentary Capacity in 2010, when the will was signed, is a separate issue, one which was not argued before me in this proceeding. It is not my intention to opine, or even comment upon, that distinct issue.

[23]         This issue is now directly before the Court, because if it should be determined that the Respondent is required to return any funds for which she has not sufficiently accounted, what is to be done with that money? If it is ordered paid to the Estate, she is still the Executor of the Estate, since no steps have been taken to remove her. Moreover, it would be open to the third-party legatee named in Doris Withenshaw’s 2004 Last Will and Testament, should they receive notice and decide to do so, to raise the issue with respect to the 2010 Will, which neither of the present parties have chosen to do, at least so far.

[24]         I will return to address this issue, as well, later in these reasons.

[25]         Next, the Applicants have indicated that they seek to recover some funds paid to the Respondent by their mother prior to the date upon which she has been shown to have been legally incapacitated. Most prominent of these funds was a cheque signed by the deceased payable to the Respondent in the amount of $50,000, dated March 23, 2007. They argue that, although this predates May 1, 2007, by approximately five weeks, Doris Withenshaw's incapacity did not just "suddenly emerge" on the latter date. Rather, her disease was rapid and ongoing, and (they continue) her overall health situation could not have been meaningfully different on March 23, 2007, than it was on May 1, 2007.

[26]         Alternatively, the Applicants argue that I should conclude that their mother was completely dependent upon the Respondent for everything at the time that the cheque was issued, and that her autonomy was completely overborne by the wishes of the Respondent. As a consequence, Doris Withenshaw’s actions in signing the cheque should not be regarded as voluntary. Rather (the argument continues) it came about as a result of undue influence brought to bear upon her by Gail Withenshaw. They say that the Respondent should be required to repay these funds as well.

Issues

[27]         The issues, therefore, resolve themselves into the following:

A.               Admissibility of the late affidavit

B.                Has the Respondent satisfactorily accounted for the assets with which she dealt during the course of her mother's legal incapacity, which is to say, from May 1, 2007, to November 1, 2014?

          C.      If the answer to B is "no", what sum must the Respondent repay?

          D.      What (if anything) is to be done about monies provided to the Respondent by Mrs. Withenshaw prior to May 1, 2007, including the cheque dated March 23, 2007, in the amount of $50,000.00?

E.      To whom must the Respondent repay those sums, if any, for which she has not satisfactorily accounted?

Discussion

A.               The late Affidavit

[28]         If anything, “the late Affidavit” is somewhat of a misnomer.  A sworn copy was never provided to the Court, and the unsworn version was provided by counsel for the Respondent a mere two days before this hearing began.  Much of it consisted of tabulations and summaries of numbers provided by the Respondent in earlier affidavits.  Moreover, no attempt was made to obtain an Order excusing the failure to comply with either the filing deadlines fixed at the Motion for Directions, or the timelines in Civil Procedure Rule 5.06.

[29]         These failures make this determination a very pedestrian one.  I have completely disregarded everything in this unsworn “affidavit” which the Respondent attempted to place before the Court.  

B.                 Has the Respondent satisfactorily accounted for the assets with which she dealt during the course of her mother's legal incapacity, which is to say, from March 1, 2007, to November 1, 2014?

(i)         What is the extent of the obligation owed by an Attorney to her Principal?

[30]         The donor of an Enduring Power of Attorney (in this case, the late Doris Withenshaw) is entitled to expect the utmost good faith on the part of her Attorney. Their relationship is quintessentially a fiduciary one. With respect to those assets entrusted to her, the Attorney is required to subordinate her own interest at all times, and always act in accordance with the donor's interests and instructions.

[31]         That does not change once the donor has become legally incapacitated and unable to instruct her Attorney or ratify her actions. Indeed, it becomes more critical than ever that the person entrusted with the management of the assets of a person lacking capacity ensure that all of her actions are consistent with the obligations that she owes to her principal. She must be able to demonstrate that she has scrupulously observed those obligations.

[32]           In some circumstances, what is in the best interest of a donor now lacking capacity may not be self-evident. As the Law Reform Commission's February 2014 Discussion paper puts it (in section 9.2.1):

Part of the duty of loyalty is the duty of obedience. If the donor has capacity to direct the attorney then the attorney must follow that direction. Where the donor is suffering diminished capacity, however, or in the absence of direction by the donor, the attorney must make decisions and act in the best interests of the donor. How to make decisions in the donor’s best interests, however, may not be self-evident.

Nova Scotia’s Powers of Attorney Act does not provide guidance as to how the attorney is to make decisions in the best interests of the donor. There is an assumption that the donor will have chosen an attorney who implicitly knows the donor’s wishes or what the donor’s best interests are. Anecdotal information and academic literature, however, indicates that there may be confusion as to how exactly attorneys are to go about making decisions. Attorneys, assuming they know what is in the “best interests” of the donor may make decisions which a donor would not want for him or herself.

[33]         However muddled the situation may (hypothetically) become in certain circumstances, when charting a course intended to benefit or further the incompetent donor's best interests, integral to the performance of that duty is the maintenance of proper records by the Attorney.

[34]         It was noted in the earlier decision that Enduring Powers of Attorney are essentially creatures of statute. An Attorney is required to observe all of her common law obligations, as well as those imposed by the Act. The statutory impositions include the possibility that she may be required to account to the Court for her stewardship of an incompetent person's assets, during any period of the latter’s incapacity. It is almost impossible to account satisfactorily to the Court when required, absent adequate written records.

[35]         Another theme emerges from the caselaw, and it is not mysterious. I have earlier observed that the Attorney's personal interest must be subordinated to the obligations that she owes to her principal. To put an even finer point upon it, the Attorney's own personal interest does not even enter the picture.  If any benefit is derived by her in the performance of her duties, it must merely be tangential or incidental to an act performed in accordance with the obligation owed to her principal.

[36]         At its most basic, the Attorney has a fundamental duty not to enrich herself, or otherwise consume the assets entrusted to her, for her own gain. This is especially critical when the donor has become unable to invigilate or instruct her Attorney.

(ii)     What is the pool of assets for which the Respondent must account?

 

[37]         In order to determine the sufficiency of the accounting provided by the Respondent, one must, at the outset, circumscribe the parameters of the asset pool during the relevant period. In the first proceeding, the Applicant Gary Withenshaw testified that his mother moved into her first nursing home, in or around 2002.  It was his practice, at least at the time, to assist her with her financial affairs, including the preparation of her income tax returns. Through this means, he was aware that she had various investments totaling approximately $320,000.00.

[38]         Their conversations eventually led Doris Withenshaw, in or around 2004, to move her monies and invest with Gary's investment advisors, who were then known as Clarica, and later became Sun Life Financial. I covered this in the earlier decision:

9.  Doris’ investments were moved to Clarica. The change became a new bone of contention between her children. The Respondent felt that the move was Gary's method of asserting control over their mother and her finances. Moreover, when Gary did her taxes that year he apparently made a mistake in that he understated her income, having neglected to add in the income from a RIF.

10.  In 2006, and on the Respondent's recommendation, her mother returned her investments to Investors Group. Gail indicated that her mother also designated her as her attorney, and discussed the possibility of the Respondent becoming the Executrix of her Last Will and Testament at that time. It appears that the Will, however, was not signed until May 6, 2010 …

[39]         The Respondent provided answers to interrogatories dated January 22, 2019 (see affidavit, Gary Paul Withenshaw dated March 27, 2019, Exhibit “K”). Question and answers 1-5 thereof follow:

1. How many bank [sic] or financial institution accounts either registered or non registered did your late Mother have as of January 2006?

Based on my personal knowledge, my Mother had Registered and non registered accounts with Sunlife and Investors Group.  My Mother and Sharon Simoneau [sic] of Investors group were in the process of transferring her investments back to Investors Group in Kingston, from Sunlife in Halifax.

2.  To your knowledge, did your Mother (or you, acting as power of attorney) open any new accounts after January 2006?  If so, which accounts (at what institution, what type of account, and what account number)?

Based on my personal knowledge, my Mother and Investor group representative Sharon Simoneau Re-opened or opened a new Registered and non registered account in Investors Group in 2006.  This was opened to transfer the Investments taken by my brother in 2004 and 2005 to Halifax with the promise of building her a basement apartment in his Sackville home.

3.  When were any new accounts referred to in question 2, opened?

Based on my personal knowledge my Mother and Sharon Simineu in 2006, to transfer the accounts back to where they were for 9 years prior to being moved by brother Gary.

4.  To your knowledge, did your Mother (or you, acting as your Mother’s power of attorney) close any accounts after January 2006?  If so which accounts (at what institution(s), what type of account(s), and what account number, and when?

Based on my personal knowledge my Mother and Investors group closed Sunlife’s account in 2006/2007 after transferring all investments back to Mothers original Investor and home town.

5.  From what account’s [sic] was your Mother (or you as power of attorney) transferring funds into the Investors Group Money Market fund(B#00379)?  Please list all accounts and their account numbers?

 

I have no personal knowledge of this, but based on the information received from Sunlife, and Investors Group, it appears this account was opened to receive the monies that were transferred back from Sunlife.

[Emphasis added]

[40]         I also mentioned in the earlier decision certain documents that were eventually produced to the Applicants pursuant to Orders of this Court dated September 10, 2018, and April 11, 2019. Some of these records included statements of account for what is now Sun Life Financial. There were apparently two accounts, CI policy numbers 57180648 and 57174443. The value of the former on January 1, 2006, was $80,236.52, and its value on December 31, 2006, was $79,597.92 (affidavit of Gary Paul Withenshaw dated March 27, 2019, Exhibit “L”). The value of the latter at the beginning of 2006 was $248,680.41, and its value at year-end was $101,232.13 (same affidavit, Exhibit “M”).

[41]         It would appear then, that not all of the money was removed from the Clarica/Sun Life investments in 2006. In fact, $180,830.05 remained with Sun Life and was not transferred to Investors Group, at least not during 2006. No records have been provided to show what happened to these funds subsequently. Counsel for the Respondent indicated that the accounting provided by Gail Withenshaw to the Court is intended to encompass all of the assets of her mother for which she was responsible, whether they were housed at Sun Life/Clarica or Investors Group.

[42]         Therefore, I begin to quantify the "pool" by having regard to the $328,916.93 contained in the two CI policies as of January1, 2006.  From there, I apply some findings of fact made in the earlier proceeding. Specifically:

18.  The evidence satisfies me that Doris Withenshaw’s living expenses included the following: $10,537.96 from August 15, 2007 through December 31, 2007, $29,371.50 for the calendar year 2008, $31,529.19 for 2009, $28,824.33 for 2012 and $5,461.80 for 2014. (Affidavit of Gary Withenshaw, January 10, 2020, Exhibit “6”, Tab A)

19.  The evidence further satisfies me that the deceased's income over the relevant interval is accurately set forth below:

(a)              2006: $46,166.00;

 

(b)             2007 $45,327.00;

 

(c)              2008 $37,024.00;

 

(d)             2009 $33,967.00;

 

(e)              2010: $33,753.00;

 

(f)               2011: $40,507.00;

 

(g)              2012: $39,693.00;

 

(h)              2013: $43,481.00; and

 

(i)                2014: $32,904.00.

[43]         Only a portion of the late Doris Withenshaw's living expenses for 2007 (the period of August 15, 2007, to December 31, 2007) were quantified.  This appears to be due to the fact that she transferred from the Kennedy Boarding Home to Grand View Manor in or around August/September 2007. Nevertheless, it is obvious that she would have incurred living expenses throughout the first part of 2007 as well. Gail Withenshaw asserts in her subsequent affidavit of January 25, 2021, that these additional expenses for 2007 amounted to $6,000.00 (Exhibit “A”, p. 5).

[44]         Drilling deeper into the income tax return records provided to the Court (affidavit, Gary Paul Withenshaw, January 10, 2020, Exhibit “B”), it would appear that the deceased's living expenses for 2010 were $30,866.00, for 2011 they were $35,905.00, and for 2013 they were $33,339.00.

[45]         During the period 2006 up to and including the tax year 2014, Gail Withenshaw apparently paid the cumulative amount of $27,135.05 in income taxes, arrears, and penalty interest. I say "apparently" because, to some extent, the exercise involves an interpretation of the income tax return printouts received in bulk by the Respondent and eventually produced to the Applicants.

[46]         In fact, I must segue briefly to observe that some of these and other points (conceivably) might have been clarified by the Respondent had she been subjected to any cross-examination on her accounts by the Applicants in this particular portion (stage two) of the hearing. Interestingly, counsel for the Applicants indicated that he was under instructions not to cross-examine the Respondent, despite taking the position that her accounting was woefully inadequate. This will place the Court in the position of having to interpret what it does have available as best it can and consider the amount of "light" that it shines, in totality, upon the Respondent’s accounting of her management of the assets of her late mother.

[47]         So, when Doris Withenshaw’s cumulative income to 2014 is totalled, the amount of taxes and arrears paid during that interval must be subtracted, as well as her living expenses.  I conclude that the remainder is the net amount of money to be added to what was held in the Clarica/Sun Life financial and Investor Group accounts. This provides the total extent of her assets and income during the period from January 1, 2006, to the date of her death in 2014, as nearly as it may be ascertained. That total is $445,769.15.

[48]         I stress, yet again, that the POA was signed on June 20, 2006.  Doris Withenshaw was found to have lacked capacity as of May 1, 2007. Therefore, the Respondent's accounting must only encompass the period of time from that latter date to November 1, 2014, when her mother died.

[49]         To arrive at the appropriate starting point, certain assumptions may be made. The first of these, as noted earlier, is that Doris Withenshaw undoubtedly incurred living expenses from January 1, 2006, to May 1, 2007. Such expenses are attributable to rent at the Kennedy boarding house, food, and whatever utilities she was required to pay (if any), as well as any discretionary spending, during that interval. I take into account the various factors mentioned in the affidavits filed by the parties, including the fact that she was hospitalized for approximately one month from May - June 2006 while recovering from a broken hip.  I also consider that she was legally blind, and was consequently unable to drive.  She was thus limited in her ability to go out and about on her own.  Moreover, she had one or two dogs at any given point in time.  She had to feed and look after them also. I further consider that the Respondent has pegged her late mother’s expenses for the discrete period from January – August, 2007 at $6,000.00, as earlier noted (albeit without anything concrete to back that figure up).

[50]         I conclude, on the balance of probabilities and on the basis of her costs of room and board in subsequent years, that the sum of $33,000.00 is reasonable to attribute for her costs of living and other expenses from January 1, 2006, to May 1, 2007. In so doing, I necessarily conclude that the figure in respect of which the Respondent must account to this Court is in the amount of $412,769.15 ($445,769.15 - $33,000.00).

[51]         The first portion of this figure for which credit to the Respondent is to be given would be the, as yet, unattributed living expenses related to the period from May 1, 2007 to August 15, 2007.

[52]         I have earlier quantified Doris Withenshaw’s living expenses from January 1, 2006 – May 1, 2007, at $33,000.00.  This equates to $1,941.18/month.  Therefore, over the 2.5 month span from May 1, 2007 to August 15, 2007, her living expenses amounted to an additional $4,852.95.

(iii)    Some specific transactions mentioned in the earlier decision

[53]         To begin with, three transactions are referenced in the affidavit of Gary Paul Withenshaw dated January 10, 2020, at Tab C thereof (Exhibit “6”). These consist of a series of cheques, numbers 001, 009, and 016. Number 001 is dated March 23, 2007.  It is in the amount of $50,000.00, payable to Gail Withenshaw, and signed by both the Respondent and her mother.  It obviously predates May 1, 2007.  I will deal specifically with cheque 001 (as previously indicated) later in these reasons.

[54]          Cheques 009 and 016 are dated June 5, 2008, and June 20, 2008, respectively. The first is signed by the Respondent "G. Withenshaw (POA)". It is in the amount of $10,000.00 and is payable to her. To the left of her signature appears the words "car for mom". The latter cheque is signed by both the Respondent and her mother, is also made payable to the Respondent, and is also in the amount of $10,000.00.

[55]         In the earlier decision, I reference that portion of the Respondent's affidavit dated February 18, 2020 (Exhibit “7”) where she offers an explanation with respect to the June 5, 2008, cheque:

123.  In para. 73 of her affidavit, as referenced in her brief (Exhibit “7”), the Respondent does discuss the car:

Due to disc degeneration, mom was having more and more difficulty getting up into the front seat of the F150 truck. She suggested we get a car, so she could easily get in. After trying out a few cars, she picked a 2008 Calibre. It was good on gas and had 17'' wheels. Mom, being so short, the seat was right there at her bottom. No climbing or pulling herself up, just turn and sit. During the purchase the salesman asked whose name it should go in, mom said "Gail's name". I commented that it probably should go to the estate. She said, “no, you will be driving me around all the time; when I'm gone it's yours." I told her, “Gary is going to have a fit". She said, "oh well, it's my money."

[56]         There are two aspects of this transaction which must be considered. The first involves the state of Doris Withenshaw's health at the time of this car purchase, and what she depended upon her daughter to do for her. I begin with the established fact that almost the only opportunities Doris Withenshaw had available to her to get away from her residence, and get a change of scenery from time to time, were on those occasions when the Respondent commuted from her home and took her mother out. 

[57]         The Respondent states in her affidavit of January 25, 2021:

22.  I estimate that I travelled about 73,000 kilometres while looking after my mother.  I drove her everywhere, including to and from my home, to and from her appointments and for social events like jamborees and parades.  I did not keep all of the receipts or specific records at that time of all the mileage.  My mother was adamant that she would pay for insurance and registration for the car.  This expense was $500.00 per year for insurance and $200.00 for registration every second year.  This started in May 2008.  We stopped at the Registry of Motor Vehicles after purchase [sic] the car to complete these registrations. 

[58]         I have also been satisfied (from testimony, and the Grand View Manor records) that the Respondent commuted, on average, two to three times weekly to see her mother.  She lived in Wilmot, Nova Scotia.  Doris Withenshaw lived in Berwick, Nova Scotia, 28 kilometres away.

[59]         I also consider Ms. Withenshaw’s considerable physical limitations by the time of the car purchase. For example, over a year earlier, a series of assessments were performed at The Soldiers Memorial Hospital preliminary to Mrs. Withenshaw’s transfer from the Kennedy Boarding Home to the Grand View Manor later that year. Those entries (found in Exhibit “3”, at pages 15 and 16) include the following observations:

Client depends on caregiver [the Respondent] to maintain the daily routine... Client loves to be active and has been walking several times/day to get out of the home and to relieve frustrations. Client has had to ask for directions to get her back to her home...

[60]         And at Exhibit “3”, page 20:

"Client's care needs are beyond the [Kennedy] Boarding Home level."

[61]         In further assessment notes dated June 20, 2008 (Respondent's affidavit, Exhibit “7”, Tab 27, p. 1) the following observation and suggestion by Dr. Glenn Ginther is found:

I would also suggest going out with her daughter as frequently as possible be supported until she is unable to do so any longer. There is most certainly going to be some mild confusion upon her return but this can be addressed quite simply by distraction and her visits with her daughter are most likely more beneficial than staying at home despite her mild confusion upon her return.

[62]         On October 6, 2008, Doris Withenshaw sustained the second of two significant falls that are documented in the materials with which the Court has been provided. This time the consequences were egregious. She was diagnosed as having sustained a broken pelvis and placed on immediate bedrest.

[63]         The subsequent Grand View Manor "Clinical Support Service Referral Form" (Respondent's affidavit, Exhibit “7”, Tab 29) documents that, in part, Doris Withenshaw’s other diagnoses include "dementia, macular degeneration, osteoporosis, and degenerative disc disease."

[64]         This is not nearly exhaustive, however, it serves to place in context the Respondent's explanation with respect to the purchase of the vehicle.

[65]         I earlier made reference to that portion of Exhibit “7” para. 73, where the Respondent added:

During the purchase the salesman asked whose name it should go in, mom said "Gail's name". I commented that it probably should go to the estate. She said, "no, you will be driving me around all the time; when I'm gone it's yours." I told her, "Gary is going to have a fit". She said, "oh well, it's my money."

[66]         There has been no attempt made to argue that the statement noted above, which is obviously intended for the truth of its contents, is admissible under any of the various exceptions to the hearsay rule (whether those recognized at common law, or upon any principled basis). That said, it does indicate an awareness on the Respondent's part (at least by the time she prepared her affidavit) that ownership ought to have been taken in her mother's name, and that (at the very least) the residual value of the vehicle at the time of her mother's death (November 1, 2014) ought to have been one of the estate assets.

[67]         With some hesitation, and due in part to the fact that there was no cross-examination of the Respondent during the first hearing which impacted upon my assessment of her credibility with respect to the need for the purchase of the vehicle, and no cross-examination whatsoever during the second part, I have been satisfied, on a balance of probabilities, that there was a need for the purchase of a vehicle suitable to Doris Withenshaw’s physical limitations, so as to accommodate her with respect to what was almost the only respite from Grand View Manor (outings with her daughter) that she received during the last six years of her life.

[68]         The purchase price of the vehicle (affidavit, sworn January 25, 2021, filed June 18, 2021, Exhibit “I”), was $20,930.99 “all in”.  The date the vehicle was delivered appears to have been May 27, 2008.  It also appears, from the handwritten notes on the contract, to have been paid by two cheques, in the amounts of $14,492.46 and $6,438.53, which add up to the purchase price.  It therefore appears that the funds were paid by the Respondent (copies of cheques in these amounts from her mother’s accounts, or anywhere else, have never been provided) initially.  Cheques #009 and 016, written within three days of each other, involved her mother “repaying her”, at least to the tune of $20,000.00.    

[69]         The Respondent attempted to explain the provenance of cheque #016 in her brief, when discussing the acquisition of some land that she purchased, also in 2008:

In my Notice of Contest dated and signed June 19, 2018 by my previous lawyer... we contest [sic] my brother's [Gary's] accusations by stating: The lake property was mortgaged by the respondent. She [the Respondent's previous lawyer] did make an error, of the $16,000 gift of a down payment in 2008. It was actually $10,000 as per my brothers evidence cheque #016, also signed by my mom.

[70]         Even if I were to accept this assertion at face value (and I repeat that it is contained in a brief rather than in any sworn document), Doris Withenshaw lacked the capacity to make a gift of this money. I concluded that it is much more likely, given the total payable for the car, the date upon which it was purchased, and the dates upon which both cheques #009 and 016 were written, that they were expended to “repay” the Respondent for the purchase of the car, which was an asset needed to facilitate the Respondent’s transport of her mother, due to the latter’s health issues.

[71]         I also concluded that the original assertion in the Respondent’s Notice of Contest dated June 19, 2008 (as prepared by her, then, legal counsel) is probably correct given the timing of the cottage purchase.

[72]         The Respondent only acknowledges that the first of these cheques involved payment by her mother toward the car.  This is another example of something that could have been cleared up with even minimal cross-examination of the Respondent, had the Applicants not instructed their counsel otherwise. 

[73]         So, $20,930.99 is the cost to be attributed to the purchase of this vehicle.  On the balance of probabilities, I conclude that the sum of $20,000.00 (cheques 009 and 016) was paid back to Gail Withenshaw out of Doris Withenshaw’s funds.  Of that amount, therefore, the Respondent must repay all but $930.99 of whatever the book or resale value of the vehicle was on November 1, 2014. 

[74]         There is no evidence before me as to the book or resale value of that vehicle on November 1, 2014. The parties will either agree as to that value within fourteen (14) days of the receipt of this decision, or contact the Court to arrange to be heard with respect to that value. This is the first component of the amount which the Respondent will be obligated to repay.

[75]          Any purported gift allegedly made by the late Mrs. Withenshaw of the residual value of the vehicle to her daughter, even if I were to set aside the hearsay difficulties created by the aforementioned portion of the Respondent's affidavit, occurred well after the date upon which I was satisfied that Doris Withenshaw lacked capacity.

(iv)     Assets and or transactions not referenced in the earlier decision

[76]         It is through her affidavit of January 25, 2021 (filed June 18, 2021), that Gail Withenshaw has attempted to account for the bulk of the monies and assets with which she was entrusted during the May 1, 2007 to November 1, 2014 period.  Her approach is epitomized in the following excerpts:

 4.  I attach hereto as Exhibit “A” to this affidavit a copy of a spreadsheet showing a complete accounting of the funds over which I had access during this time period.  The first section relates to the Investors’ Group bank account that I managed with my mother.  The second section relates to her income received during this time period.  Finally, the third section relates to the expenses paid during that same time period.

5.  My mother entered Grand View Manor (hereinafter “Manor”) in 2007.  When she did so, she need some more clothing, personal items, such as bedsheets, and footwear.  It was at that time that I accompanied my mother out on shopping trips to purchase several items to furnish her room at the Manor.  The withdrawal of $4,000.00 (cheque 006) was largely to purchase such items for her and I also purchased some other items.  There were other purchases made by me beyond this initial purchase for her benefit.

6.  My mother often felt cold, so we purchased warm fleece bedsheets, warm pyjamas, fleece socks and warm slippers.  Her items could often be lost or misplaced at the manor and I had to replace them from time to time.

7.  As my mother was suffering from arthritis, and degenerative disc disease, it was often recommended that she purchase shoes from reputable orthopaedic brands such as Rieker, Aerosoles and Dorndorf.  Typically, we would by [sic] supportive shoes from Maxwells.  Given the quality of these shoes, they often cost more than $100.00 pair.  I attach as Exhibit “B” to this affidavit a few pictures of some of my mother’s shoes.

8.  I attach hereto as Exhibit “C” pictures, of certain items that were purchased around that time with cost associated: 

…

[77]         The Respondent proceeds to further outline purchases of “compact disc systems” for her mother’s room, as well as compact discs, winter clothes, and feather pillows, many of which were eventually transferred to her own home when Doris Withenshaw was transferred to a secure ward at Grand View Manor in 2009 (affidavit, January 25, 2021, paras. 9 – 12).  No receipts have been provided for the above items. 

[78]         It is surely superfluous for me to state that the Respondent’s practice of photographing certain clothing or other items, asserting they were purchased for Doris Withenshaw using the latter’s funds, and retrospectively estimating the cost is also extremely flawed.  First, many of the photos were not taken in situ during Doris Withenshaw’s lifetime.  Second, (and, among other things) the Court cannot assign, with any degree of confidence, the cost expended to acquire them, who kept them after November 1, 2014, and, if so, what residual value ought to be allocated to them (if any).

[79]         At para. 18 the Respondent also relates:

My mother also had certain medications that she had to take.  Her medications were not included in the cost of the Manor, and these costs were paid separately by me on her behalf.  I include as Exhibit “H” to the Affidavit a record of these expenses from Lawton’s Drug Store that I paid, and I have reflected these costs in the expenses attached in Exhibit “A”.  This amount, in total, was $15,183.23.  I would pay these expenses at a Lawton’s drug store in New Minas, which is forty-five minutes from where I live. 

[80]         Then at paras. 20 – 24:

20.  I would also take my mother out for meals regularly on my days off for more variety.  She especially enjoyed going out for lobster chowder and dessert at the (old) Driftwood Restaurant in Berwick and Johnny’s Cookhouse, and we did this twice a week at a cost of $40.00 per week.  This is reflected in the expense portion of my spreadsheet.  I would also purchase food to prepare for her here at home, as we would often purchase items together at the grocery store for grilling or preparation here at my home.

21.  When my mother went into care, I regularly drove a truck.  After my mother broke her pelvis, my mother would find it very difficult to get into my truck as she had to climb up and into the seat.  Together, we chose to get a car that would seat her more comfortably.  I attach hereto as Exhibit “I” a receipt and other documents from the auto dealer in Middleton referring to that purchase.  Cheque 009 from Exhibit “A” was largely used to pay the purchase amount of the car, along with some other savings that my mother had.  This car was equipped, at my mother’s direction, with additional equipment that she considered for our safety, such as exterior visors, mud flaps and winter tires.  My mother asked that I sign all documents because she was embarrassed to sign her signature, being blind, which would likely be crooked.

22.  I estimate that I travelled about 73,000 kilometres while looking after my mother.  I drove her everywhere, including to and from my home, to and from her appointments and for social events like jamborees and parades.  I did not keep all of the receipts or specific records at that time of all of the mileage.  My mother was adamant that she would pay for insurance and registration for the car.  This expense was $500.00 per year for insurance and $200.00 for registration every second year.  This started in May 2008.  We stopped at the Registry of Motor Vehicles after purchase the car to complete these registrations.

23.  I would also take care of Christmas gifts from my mother to my two brothers, myself (at her request and her grandchildren annually.  She came to my home each year except 2012 and 2013.  She had been injured in 2012, and we spent Christmas at the hospital together in 2012.  I made the following gifts at her direction:

            a.         In 2007, 2008, 2009 and 2010, $150.00 (three money orders of $50.00 each to her children) and $125.00 (five money orders of $25.00 to adult grandchildren) for a total of $275.00 each year, or $1,100.00 in total;

            b.         In 2011, $50.00 to myself and $25.00 each to my three sons, for a total of $125.00;

24.  Shortly before my mother passed away, she left approximately $27,000.00 in investments.  I did cash that investment out with the intention of bringing her home to rest for her final days.  When cashed, approximately $8,000.00 was withheld for taxes and I prepared to make my home appropriate for her.  Unfortunately, she passed away before preparations were finished and the cheque remained dormant.  After her passing, a cheque for $19,000.00 was returned and then placed in her estate, and $8,000.00 was returned by C.R.A.  These amounts were reflected as income in her 2014 tax return.

[81]         It is important, at this juncture, to consider the other information that has been provided with the Respondent’s affidavit.  Exhibit “A” to the January 25, 2021, affidavit is a spreadsheet ostensibly:  “…showing a complete accounting of the funds over which I had access during this time period.  The first section relates to the Investors’ Group bank account … The second section relates to her income received during this time period.  Finally, the third section relates to the expenses paid during that same period.”

[82]         The spreadsheet appears to have prepared by Gail Withenshaw, and purports to account for the expenditures from the Investors’ account.  Many of the cheques referenced therein (aside from those discussed previously) have not been produced.  Moreover, although I noted earlier (para. 41) that almost $181,000.00 also remained in the SunLife/Clarica account post 2006, nothing even approaching a reconstruction has been offered by the Respondent to describe the fate of these investments. 

[83]         As noted earlier, this is completely inadequate.  Given the longstanding level of acrimony between herself and her brothers, to which Ms. Withenshaw has repeatedly alluded, she should have realized that, if anything, it was more important than ever that she maintain adequate records to document the expenditures that were being made.  With respect to the overwhelming bulk of the assets with which she was entrusted, she has provided nothing but vague anecdotes.

[84]         To take but one example, it does not suffice for the Respondent to estimate that she travelled over 73,000 kilometres “while looking after my mother” (affidavit, January 25, 2021, para. 22).  Even if documentary evidence corroborating this had been produced (and it has not) I have found that her mother purchased the vehicle which was driven for this purpose.  The residual value of this asset, as of November 1, 2014, (less $930.99) belongs to her estate. Upon what basis, therefore, does the Respondent receive compensation for her use of the vehicle in furtherance of trips with her mother, or taking her to appointments, or outings?  She was ostensibly a daughter helping her ailing mother, not a paid caregiver.

[85]         Moreover, because the Respondent took the position that she owned the vehicle, I would have assumed that she paid for the gas that went into it.  However, she offered no evidence on that point, and she was not cross-examined on it (or anything else with respect to her proffered accounting). It turns out that the late Mrs. Withenshaw was actually paying the insurance and registration for the car. 

[86]         With respect to those latter expenses, all we have is Gail Withenshaw’s affidavit evidence (para. 22) that the insurance and registration amounted to an estimated annual expense of $700.00 per year in total, beginning May 2008.  For six and one-half years this totals $4,500.00. 

[87]         Although these sums were not proven, the car could not have been driven had it not been registered and insured.  Since I have found that Doris Withenshaw was the beneficial owner of the vehicle, these were valid expenses.  Even though they were presented as “estimates”, they strike me as reasonable ones. 

[88]         The only other valid cost incurred in relation to the car is the cost of the gasoline for the two to three average weekly visits to the nursing home from the date of acquisition of the vehicle (May 2008) to the date of Doris Withenshaw’s death (November 1, 2014), a 56 kilometre commute, round trip.  There was also gas expended for trips using Gail Withenshaw’s vehicle before this new car was purchased.  No evidence was called as to the fluctuating cost of gasoline over this interval.  The parties will agree to the amount for which the Respondent is to be given credit for the gas consumed from May 1, 2007, to date of death as against the estate assets for which she must account (as is the case with respect to the residual value of the vehicle on November 1, 2014) within two weeks of the date of this decision, failing which another hearing will be convened at which the relevant evidence may be called.

[89]         I repeat that in the overwhelming majority of cases, the failure to provide receipts, or some documentation, to enable the Court to conclude what expenditures were made, how much expense was incurred, and that it was for the benefit of the donor of the Power of Attorney in question, will prove fatal to a Trustee’s assertion of an expense paid on behalf of the donor.

[90]          In this case, we have medical evidence that would have justified the need for the purchase of a car suitable for Doris Withenshaw’s needs, as well as the records of the nursing home that document many of the visits that the Respondent made to her mother to take her on outings Grand View Manor.  We know that it was a 56-kilometre round trip from the Respondent’s home to the Manor, each visit.  The only unknowns (to repeat) are the cost of the gasoline which would have been incurred, and the residual value of the vehicle (which was beneficially owned by Doris Withenshaw’s estate) on the date of her death, November 1, 2014.

[91]         Ordinarily, I would have some concern about the potential expense of convening yet another hearing to deal with evidence associated with this accounting.  However, I feel less concerned about this possibility when I consider that:

1.                 Once again, many of the ambiguities could have been either cleared up, or at least further explained by the Respondent had any cross-examination on her accounts been undertaken by the Applicants; and 

2.                 In any event, the parties may obviate the need for another hearing (with respect to the passing of accounts, anyway) if they are able to agree as to the values to be attributed to these expenses.

[92]         Finally, the cost of Doris Withenshaw’s medications over the relevant time period has been documented by the pharmacy.  This expenditure, in the amount of $15,183.23, has been satisfactorily established. 

          C.      If the answer to B is "no", what sum must the Respondent repay?

[93]         So, where does that leave us?  I return to the value of the “pool” of assets for which Ms. Withenshaw must account, which is $412,769.15.

[94]         This yields $412,769.15 – ($4,852.95) – ($4,500.00) - ($15,183.23) = $388,232.97.  From this figure must be subtracted ($20,000.00 minus all but $930.99 of the November 1, 2014 resale value of vehicle) and the gasoline expenditures May 1, 2007 – November 1, 2014 for the two to three weekly visits by the Respondent with her mother.  She travelled from Wilmot to Berwick, Nova Scotia, 56 kilometres round trip each visit. 

[95]         Finally, the present-day balance of the Estate fund, less that portion of it comprised of the life insurance monies, which were paid after Doris Withenshaw’s death must be subtracted.  These life insurance monies do not form part of the $412,769.15 managed by the Respondent during her mother’s lifetime.  Presumably, the amount of life insurance paid to the estate will be documented.

[96]         The parties will prepare an order showing the final amount owing by Gail Withenshaw after factoring in the “to be agreed upon values” for the residual value of the car and gasoline expense and present day residue of the estate (less life insurance proceeds), prejudgment interest and costs in this proceeding, or contact the Court to schedule a Date Assignment Conference for directions as to the manner in which all or any of these outstanding issues will be determined, within 14 days of the date of this decision. 

          D.      What (if anything) is to be done about monies provided to the Respondent by Mrs. Withenshaw prior to May 1, 2007, including the cheque dated March 23, 2007, in the amount of $50,000.00?

[97]         Nothing.  At least for the present.  I say this for two reasons.

[98]         First, it is certainly correct to observe that the Notice of Application does not restrict the ambit of the relief sought by the Applicants to that which is available under the Powers of Attorney Act. With that having been said, the clear thrust of their assertions has been to concentrate upon obtaining an accounting pursuant to that Act under s. 5 thereof. Gail Withenshaw was a self-represented Respondent throughout the first portion of this bifurcated hearing, almost all of which concerned Doris Withenshaw's health and her capacity, or lack thereof, within the meaning of the Act, throughout the Respondent's tenure as her Attorney. In my view, it would be unfair to expand the scope of the present Application, and seek a further accounting with respect to expenditures incurred prior to the date which I have found the late Ms. Withenshaw to have been incapacitated (May 1, 2007) based upon undue influence.

[99]         Second, when dealing with such applications under this Act, it would be wrong in law to expand that scope.

[100]    Justice LeBlanc (as he was then), observed in B.F.H. v. D.D.H., 2010 NSSC 340:

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." … 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.

[Emphasis added]

[101]    Although there is not an overabundance of decided cases in this Province which address this particular point, with respect, I am in agreement with the conclusion in B.F.H. (supra).  I have already said this in the earlier decision:

30.  The implications of this are obvious.  If “any accounting prior to the date of incapacity is owed only to [Doris Withenshaw]” and she is deceased, only her estate, under different legislation, could hold the Respondent to pass accounts for transactions incurred prior to the period of incapacity – and the Respondent is the Executrix of the Estate in any event.

[102]    Any accounting with respect to expenditures prior to May 1, 2007, would have to come about as a result of proceedings initiated by the Estate of Doris Withenshaw. I will say more about the current and future status of that estate below.

 

E.      To whom must the Respondent pay the funds for which she has not satisfactorily accounted?

[103]      The funds are to be paid into Court, pursuant to Civil Procedure Rule 46.05, and shall be held by the Prothonotary in accordance with Civil Procedure Rule 82.16, pending conclusion of matters in Probate Court proceedings K-12999.

[104]    A copy of this decision, the earlier decision, and written notice providing the Faith Baptist Church (affidavit, Respondent, February 18, 2020) of its’ potential interest in Probate proceeding K-12999, and that it is an interested party entitled to seek legal advice and participate in it, shall be served upon the Church by the Applicants, within 20 days of this decision.      

[105]    Within 45 days, the parties and the representatives of the Faith United Church (if the latter wishes to participate in proceeding K-12999) shall contact the Court to schedule a Pre-Trial Conference so that instructions may be provided with respect to any necessary applications (if any) required within in the context of that Estate.

 

Gabriel, J.