Applicants with genuine interest in mother's welfare granted leave to bring application for passing

Civil Practice and Procedure - Power of Attorney - Miscellaneous

Mother was diagnosed with early onset Alzheimer's disease in 2010. In 2012, mother executed powers of attorney for personal care and property naming son V and daughter M as attorneys. In 2013, mother executed new powers of attorney naming son F as attorney, and shortly thereafter moved to Yukon with F and his wife E. Mother and F and E then moved to British Columbia in 2014, and in 2018, mother moved into nursing home. In December 2013, V and M brought application for various relief including order that Public Guardian and Trustee appoint counsel for mother, and that powers of attorney be declared invalid. Application remained dormant until F brought motion in 2018 seeking order that proceeds held in trust be paid to mother, and that application be dismissed. Parties agreed that motion would be heard at later date, and V and M brought cross-motion for relief including leave to amend application to include claim for accounting by F, and that F pay amounts owing to nursing home as well as ongoing monthly fees. Cross-motion granted in part. V and M were granted leave to amend application, as amendment did not materially change character of dispute nor place F in untenable position. V and M had genuine interest in mother's welfare and in ensuring her assets were not being depleted inappropriately, therefore they were granted leave to bring application for passing of accounts. Evidence was not sufficient to order F to pass accounts at that time, but financial disclosure was ordered.

Hutter v. Hutter (2019), 2019 CarswellOnt 6354, 2019 ONSC 2173, R. Raikes J. (Ont. S.C.J.).

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