Month: July 2024

“The applicant argues that there has been a material change in circumstances since the making of the Final Order; specifically, that his income has increased by almost 50%.  Therefore, he submits, payment of the table amount based on his actual income would be inappropriate and the Final Order should be varied so that his income for child support purposes is capped at $2,100,000.00.  The applicant argues that, without this cap, the amount of child support payable would exceed the children’s actual needs and would constitute improper “wealth transfer” from him to the respondent.

The respondent argues that there has been no material change in circumstances since the making of the Final Order, as changes in the applicant’s income for child support purposes were anticipated and expressly provided for in the Final Order.  Therefore, she submits, there is no basis to vary the Final Order, which should be enforced in accordance with its terms.

Law

The federal child support regime “contemplates that the family as a whole – including the children – will share the rising and falling fortunes of the payor parent” and s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) is one mechanism by which child support orders can periodically be varied to “bring them in line with financial realities” (see: Colucci v Colucci, 2021 SCC 24, at paras. 28-29).

On a motion to change under s. 17, the threshold question is whether there has been a material change in circumstances since the making of the order sought to be varied, without which there is no power to vary (see: Assayag-Shneer v Shneer, 2023 ONCA 14, at para. 6).

Any party seeking such a variation must demonstrate a past change in circumstances as set out in s. 14 of the Federal Child Support Guidelines or one that, “if known at the time, would probably have resulted in different terms” (see: Colucci, at paras. 59-61).  To meet the applicable threshold, a change in income must be “significant and have some degree of continuity, and it must be real and not one of choice” (see: Colucci, at para. 61).

Decision

The case-at-bar presents – at least, as far as I am aware – a singularly unique situation where a party seeks retroactive variation of a final child support order to effectively reduce the amount of child support payable based on an increase in his income.  I was directed to no authority on point and my own research has disclosed none.”

            Lantz v. Lantz, 2023 ONSC 4220 (CanLII) at 12-17

“In order to establish ineffective assistance of counsel as a ground of appeal, an appellant must satisfy the court on a balance of probabilities that trial counsel’s conduct fell below the standard of reasonable professional assistance and that the ineffective representation resulted in a miscarriage of justice. A miscarriage of justice occurs when the ineffective representation undermines the appearance of the fairness of the trial, or the reliability of the result — in the sense that there is a reasonable probability that the result would have been different had there been effective representation: R. v. Archer (2005), 203 O.A.C. 56 (C.A.), at paras. 119-20.”

            Bors v. Bors, 2021 ONCA 513 (CanLII) at 48

“Costs incurred for the purposes of support are enforceable by the Family Responsibility Office (“FRO”) pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31(“Act”); see also Wildman v Wildman (2006), 82. O.R. (3d) 401 (C.A.); Scipione v Scipione 2015 ONSC 5982 at para. 142.”

            Duggan v. Duggan, 2022 ONSC 4184 (CanLII) at 18

“A Hague Order for the return of children does, and should, not be conflated with a custody Order because the purpose of the Convention is to return a child to the jurisdiction most appropriate to determining parenting issues: Balev, at para. 24. This does not mean, however, that the court should ignore “best interests”: rather the “grave risk” exception analysis is more focussed than the broader consideration of which parent is best able to meet a child’s needs. As observed by Horkins J. in Stefanska v. Chyzynski, 2020 ONSC 3048, at para. 62, any “interpretation of this exception, short of a rigorous one, would rapidly compromise the efficacy of the Convention”. An in-depth analysis of the parties’ history is inappropriate: Leigh v. Rubio, 2022 ONCA 582, at para. 25. It is through this lens that the reference in Paschel to importing a “best interests” analysis must be viewed:

1. 1. 1. 86. In the Article 13(b) analysis, the risk of grave harm to the specific child in returning him or her to an intolerable situation, imports the “best interests of the child”analysis. Evidence must be presented as to the risk of physical or psychological harm, and whether it is in the best interest of the child to be returned to the place of habitual residence. This is not conflating a custody concept into an Article 13(b) Hague Convention analysis. Rather, this question is mandated by Article 13(b)’s wording. The evidence must, of course, be credible and must meet the high threshold of “grave risk”. See: Pollastro v. Pollastro, 1999 CanLII 19933 (ON CA), [1999] O.J. No. 911 (Ont. C.A.).

Credibility is important. As noted in Brown v. Pulley, 2015 ONCJ 186, at para. 163:

1. 1. 1. 163. The credibility of the party seeking the Article 13(b) exception is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547(Ont. S.C.J.), affirmed at 2012 ONCA 469 (Ont. C.A. [In Chambers]).

The overarching analysis also involves a consideration of the likelihood of future harm and its severity: Ojeikere v. Ojeikere, 2019 ONCA 372, at para. 62.  In Hassan v. Garib, 2017 ONSC 7227 a mother claimed that the return of the child to the U.K. from Canada would put him at a grave risk of harm or would otherwise be intolerable. She alleged domestic violence that included verbal and physical abuse, assault, forcible confinement, police and social (and child protection) services involvement. The father disputed the allegations. Even with a finding that past violence occurred and was severe, Engelking J. confirmed that the court would still have to assess whether the violence was likely to recur. The court carefully assessed the mother’s allegations and shared third party concerns about the father as a perpetrator of domestic violence, but ultimately was unable to conclude that it was likely to recur: Hassan, at para. 90. The court was unable to prefer the credibility of one party over the other. It was also clear from the evidence that the mother was unhappy in her marriage.

In framing her analysis of “grave risk” Engelking J. considered the observations of Murray J. in Achakzad and reviewed the evidence in light of several questions which will be adapted to the evidence and facts of this case:  They are:

(a) Is there evidence of physical or psychological harm to the children and is it severe?;

(b) Does the record show that Mr. Bodnaruk is dismissive of the mother’s allegations such that the behaviour alleged to have forced her to leave Texas is likely to recur?;

(c) Would the return of the children to Texas put them in an intolerable situation that cannot be appropriately addressed by the justice (and social services) system there?”

         Bodnaruk v. Bodnaruk, 2023 ONSC 4136 (CanLII) at 15-18

“The test for bad faith in family law is set out in a number of decisions.  In S.(C.) v. S.(M.), (2007) 2007 CanLII 20279 (ON SC), 38 R.F.L. (6^th) 315, 2007 CarswellOnt 3485, Perkins J. stated:

In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.  A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

One of the most recent, and most comprehensive, decisions on the subject of bad faith was Jackson v. Mayerle, 2016 ONSC 1556, (2016) 130 O.R. (3d) 683.  In that case, Pazaratz J. quoted the passage from S.(C.), above and went on to say (at paras. 58 and 59):

58 Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity,  obstruction or obfuscation: Children’s Aid Society of Peel (Region) v. F. (K.J.), 2009 ONCJ 252 (Ont. C.J.)(CanLII), [2009] O.J. No. 2348 (Ont. C.J.); Biddle v. Biddle [2005 CarswellOnt 731 (Ont. S.C.J.)] 2005 CanLII 7660 (ON SC), 2005CanLII 7660; Leonardo v. Leonardo, 2003 CanLII 74500; [2003] O.J. No. 1969 (Ont. S.C.J.); Hendry v.Martins, [2001] O.J. No. 1098 (Ont. S.C.J.).

59 There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose.  It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated.”

         Bartucci v. Bartucci, 2023 ONSC 4114 (CanLII) at 12-13

“The Family Law Rules contain numerous detailed provisions, (primarily in Rules 13 and 19), setting forth the obligations of those engaged in matrimonial litigation to disclose financial information and other relevant documents.  For example:

a) A fundamental requirement for all family law proceedings is that each party must, soon after the proceeding is commenced, make complete and accurate financial disclosure: see, in particular, Rules 13(1) to 13(3) of the Family Law Rules.  I note, in particular, that the same obligation of complete and accurate financial disclosure applies to proceedings in which there are claims for support, regardless of whether or not a property claim also is being advanced.

b) Each party thereafter also has a continuing obligation to update his or her financial information, correct any erroneous information, and provide any omitted financial information as soon as it becomes known or is available: see, for example, Rules 13(12), 13(12.1), 13(12.2), 13(15) and 13(16) of the Family Law Rules.

c) More generally, (i.e., including but extending beyond financial disclosure), each party has an obligation to deliver a requested affidavit of documents listing every document, (with very few indicated exceptions), that is relevant to any issue in the case, and in the party’s control or available to the party on request: see Rules 19(1) and 19(2) of the Family Law Rules.

d) The court also has authority to order a party to provide another party with an affidavit listing documents that are relevant to any issue in the case, and in the control of or available on request to a corporation that is controlled directly or indirectly by the party, or by another corporation that the party controls directly or indirectly: see Rule 19(6) of the Family Law Rules.

e) A party who serves such an affidavit of documents thereafter also has an ongoing obligation, upon finding an additional document that should have been listed therein, to immediately serve an updated affidavit listing the correct information: see Rule 19(8) of the Family Law Rules.

f) Opposing parties are entitled to examine any non-privileged document listed in any such affidavit of documents, and to receive copies of any such document at the party’s own expense, at the legal aid rate, (where the existence of the document was listed in a party’s initial disclosure affidavit listing relevant documents), or free of charge, (where a party failed to list the document in its initial disclosure affidavit listing relevant documents).

Not surprisingly, the court is empowered to enforce the above disclosure obligations, if and as necessary, in various ways.  In particular:

a) If a party believes that the financial disclosure provided by another party in a financial statement or otherwise does not provide enough information for “a full understanding of the other party’s financial circumstances”, the party may ask the other party to give the necessary additional information, and if the other party does not give it within seven days, the court may order the other party to give the information or to serve and file a new financial statement: see Rule 13(11) of the Family Law Rules.

b) If a party does not follow the rules or an order regarding documentary disclosure, the court may deal with the failure by any of the ways outlined in Rules 1(8) and 1(8.1) of the Family Law Rules, (e.g., by awarding costs, dismissing a claim or striking out an answer, denying further relief and/or contempt proceedings), and/or by making further orders in relation to the offending party; e.g., obliging the offending party to permit the other party’s examination of relevant documents or supply the other party with copies of such documents free of charge: see Rule 19(10) of the Family Law Rules.

Although the court is given a broad discretion when it comes to dealing with rule non-compliance, (e.g., to make “any order that it considers necessary for a just determination of the matter”, including relief from strict rule compliance in appropriate circumstances), (again, see Rules 1(8) and 1(8.1) of the Family Law Rules, as well as Rule 2(3) thereof, which indicates that “dealing with a case justly” includes, inter alia, ensuring that the procedure is fair to all parties, saving time and expense, and dealing with a case in ways that are appropriate to its importance and complexity) the entire tenor of the various rules outlined above underscores the fundamental importance of complete and accurate disclosure in family law litigation.

Not surprisingly, our courts similarly have emphasized the bedrock importance of such disclosure.  Judicial observations and general principles in that regard include the following:

a) Our Court of Appeal has described the immediate and ongoing duty to make honest and complete disclosure of financial information as “the most basic obligation in family law”,(see Roberts v. Roberts, 2015 ONCA 450, at paragraph 11)and the rules requiring disclosure and indicating the sanctions for non-compliance as “the centrepiece of the Family Law Rules”: see Sickinger v. Sickinger, 2018 ONCA 526, at paragraph 36.

b) Such disclosure cannot be selective, or a costly game requiring parties to ferret out information: seeShinder v. Shinder, 2017 ONSC 4177 (CanLII), [2017] O.J. No. 3703 (S.C.J.), at paragraph 31, reversed in part on other grounds, 2018 ONCA 717.

c) Complete and accurate financial disclosure is fundamental to ensure that parties can engage in fair and informed discussions to enable them to reach an equitable and enforceable resolution of their family law dispute or, where necessary, to ensure that each party has all relevant and accurate financial information to place before a court so that the court can make an informed, fair and equitable judicial determination on the financial issues: see Boutin v. Boutin, 2022 ONSC 4776, at paragraph 3.

d) Where complete and financial disclosure is not forthcoming or is substantially delayed:

i) The opposing party is seriously prejudiced in his or her ability to advance claims for child support, spousal support and/or equalization;

ii) Such failures routinely lead to lengthy and unnecessarily complex family law proceedings, unreasonable positions, unnecessary motions, high conflict situations and occasional resort to self-help remedies where a party feels unable to wait for court enforced compliance with the Family Law Rules or court orders; and

iii) a financially disadvantaged party may become self-represented, often because a refusal to make complete and accurate financial disclosure is the litigation strategy of the party with superior financial resources: see Roberts v. Roberts, supra, at paragraph 12; Sickinger v. Sickinger, supra, at paragraph 36; and Boutin v. Boutin, supra, at paragraphs 5-6.

e) Such unfortunate realities have led our courts to characterize failure to make complete and accurate financial disclosure as a “cancer” in family law proceedings; a cancer which discourages settlement, promotes settlements which are inadequate, increases the time and expense of litigation, undermines confidence in our legal system, and brings the administration of justice into disrepute: see Cunha v. Cunha(1994), 1994 CanLII 3195 (BC SC), 99 B.C.L.R. (2d) 93 (S.C.), at paragraph 9; Leskun v. Leskun, 2006 SCC 25 (CanLII), [2006] 1 S.C.R. 920, at paragraph 34; Michel v. Graydon (2020), 2020 SCC 24 (CanLII), 45 R.F.L. (8^th) 1 (S.C.C.), at paragraph 33; and Boutin v. Boutin, supra, at paragraphs 7-9.

f) Court involvement should not be required to ensure the disclosure of complete and accurate financial information: see Roberts v. Roberts, supra, at paragraph 13; and Sparr v. Downing, 2020 ONCA 793, at paragraph 4: see Roberts v. Roberts, supra, at paragraph 13; and Sparr v. Downing, 2020 ONCA 793, at paragraph 4. When it is, courts should approach such situations in a manner that strongly reaffirms that that rules regarding disclosure must be followed or there will be consequences.  In particular, parties should be deterred from engaging in non-disclosure, and courts must ensure that those engaging in such non-disclosure do not benefit from doing so: see Itrade Finance Inc. v. Webworx Inc., 2005 CanLII 24776 (ON SC), [2005] O.J. No. 3492 (S.C.J.), at paragraph 20; and Boutin v. Boutin, supra, at paragraph 10.

g) Even where a party has complied with their minimum financial disclosure obligations set forth in the Family Law Rules, a more detailed and in depth analysis of their financial situation may nonetheless be required in cases where questions arise as to whether the income reported by a part is an accurate reflection of their true income, especially in cases where child support is in issue.  In particular, as child support is the right of the child, who typically is not a party in child support proceedings, it is incumbent upon the court to err on the side of more extensive disclosure if this is necessary to ensure that the child receives the full protection of the law and the most fulsome benefit of support from his or her parents.  Such an approach is consistent with the Supreme Court of Canada’s emphasis that any incentives for payor parents to be deficient in meeting their appropriate child support obligations should be eliminated: see S.(D.B.) v. G.(S.R.), 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231, at paragraph 4; and Spettigue v. Varcoe, 2011 ONSC 6004 (CanLII), [2011] O.J. No. 4914 (S.C.J.), at paragraph 19.”

            Baker v. Baker, 2023 ONSC 4082 (CanLII) at 32-35

“During the trial, the Mother was interruptive and was clearly upset.  When questioning the Father and C.C., she often made long statements instead of asking questions.  She made meritless objections which were essentially her objecting on the basis that what the witness was saying was not true and giving her side.  She wept sometimes, and on one occasion left the hearing altogether.

In my view, the Mother has suffered extreme trauma caused by IPV, false allegations made against her, and losing her Child and financial stability in an instant.  She feels that her lawyers, the legal system and the judges she has appeared before have not heard her, and that she has been treated unfairly.  It is my assessment that her interruptions and conduct during the trial were her attempt to advocate for herself and her Child.  This was her last stand and she wanted to be heard.

People who have endured extreme trauma, who are unrepresented, who are stressed from financial insecurity and who are in general distress, will not be able to present in the same manner as those who are not.  Courts must look beyond the impacts of trauma on the witness when assessing their conduct, reliability and credibility.”

            T.P. v. A.E., 2021 ONSC 6022 (CanLII) at 75-77

“Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that “subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

Pursuant to rule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to recover costs. Rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party’s behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.) at para 42).

Rule 24(6) of the Family Law Rules provides that if success on a step in a case is divided, the court may apportion costs as appropriate.

Rule 18(14) of the Family Law Rules provides that a party who makes an Offer to Settle  at least one day prior to a motion or seven days prior to a trial, which did not expire, was not withdrawn and was not accepted, and obtains an order that is as favourable as or more favourable than the offer is entitled to costs to the date of service of the offer and full recovery of costs from that date, unless the court orders otherwise.

Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 CanLII 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

In M. (C.A.) v. M (D.) the Court of Appeal confirmed, at paras. 40-42, that:

a) although the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, they have not completely removed the trial judge’s discretion;

b) although the general provision, rule 24(1), enacts a “presumption” that the successful party is entitled to costs of the case it does not require that the successful party is always entitled to costs;

c) a successful party may not obtain a costs award in his or her favour even in circumstances not falling within rule 24(4);

d) there may be circumstances aside from the unreasonableness of the successful party’s conduct that rebut the presumption; and

e) the financial situation of the parties can be taken into account in setting the amount of the costs award either under rule 24 or rule 18 pursuant to the direction in sub rule 24(11) that the court take into account “any other relevant matter”.

The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

As recently emphasized by the Court of Appeal in Beaver v Hill, 2018 ONCA 840 at paras. 12-13, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs in family proceedings and a “close to full recovery” approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14).”

         Clarke v. Maher, 2022 ONSC 4019 (CanLII) at 11-19

“Rule 12(5) of the Family Law Rules provides that the court may combine two or more cases if it would be more convenient to hear them together.

The jurisprudence indicates that, in relation to consolidation or trial together of a family and a civil proceeding, courts have considered rule 6 Of the Rules of Civil Procedure by analogy pursuant rule 1(7) of the Family Law Rules as it is more particularized and instructive (see Cruikshank v. Bastien, 2012 ONSC 7169 at para. 11-12 and Malkov v. Stovichek-Malkov, 2015 ONSC 4836 at para 13).

Rule 6.01 of the Rules of Civil Procedure provides that, where two or more proceedings are pending in the court, and it appears to the court that:

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under the rule

the court may order that the proceedings be consolidated or heard at the same time or one immediately after the other.

In assessing whether there is a question of fact or law common to both proceedings, the focus is on whether the proposed common issue has sufficient importance in relation to the other facts or issues such that it would be desirable that the matters be consolidated, heard at the same time, or after each other (see Canadian National Railway v. Holmes, 2011 ONSC 4837 at para. 43).

The court is to follow a two-step process in determining whether to make a consolidation order or an order for a trial together. First, the court will consider whether the criteria defined by the rule have been satisfied, and then consider whether the balance of convenience favours such an order (see Canadian National Railway at para. 43).

At para. 14 of Malkov Healey, J. set out a list of factors that should be taken into account at the second stage when considering a request to consolidate proceedings or order them to be tried together, derived from a longer list of factors set forth in Canadian National Railway at para. 44. The list of factors from Malkov is as follows:

a. The extent to which the issues in each action are interwoven;

b. Whether there is a risk of inconsistent findings or judgments if the actions are not joined;

c. Whether the issues in one action are relatively straightforward compared to the complexity of the other action;

d. Whether a decision in one action, if kept separate and tried first, would likely put an end to the other actions or significantly narrow the issues for the actions or significantly increase the likelihood of settlement;

e. The litigation status of each action;

f. Whether any of the parties will save costs, or alternatively have their costs increased, if the actions are tried together.”

            Alsous v. Shahin, 2023 ONSC 3995 (CanLII) at 17-22

“Next, the trial judge considered whether the transfers from Salvatore to Sam were gifts. In deciding this matter, the trial judge relied on Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, in which the Supreme Court held that when a parent gratuitously transfers property to their adult child, the law presumes that the child holds the property on resulting trust for the parent. To rebut the presumption, the adult child must proffer clear, convincing, and cogent evidence that: (1) the parent intended to make a gift of the property to the child, (2) the child accepted the gift, and (3) a sufficient act of delivery or transfer of the property occurred to complete the transaction.

…

Pecore provides that when a parent gratuitously transfers property to their adult child, the law presumes that the child holds the property on resulting trust for the parent. That is, the law presumes the child is a fiduciary. However, the presumption can be rebutted in whole or in part. So, for example, in Pecore, the presumption was rebutted in part because the court found that the father had added his adult daughter as a joint account holder with the intention of gifting to her the right of survivorship.

As I explain below, on the findings of the trial judge, Sam rebutted the presumption of resulting trust in relation to the transfers Sam made from the bank account to which he held joint title with Salvatore. In so doing, Sam proved that the impugned transfers were gifts to him. Therefore, Sam breached no fiduciary obligations in making those transfers to his own benefit.

Sam also effected transfers from other of Salvatore’s bank accounts in which Salvatore alone was on title. In effecting transfers from these accounts, Sam did so as Salvatore’s attorney. Sam knew he had Salvatore’s permission to exercise power over Salvatore’s property. In exercising that power, Sam was a fiduciary and subject to fiduciary obligations. If Sam was unsure of the source of his power, or the nature and type of obligations attendant on his exercise of power over Salvatore’s property, it was up to Sam to take the necessary steps to find out what obligations he was subject to.

For these reasons, I accept Salvatore’s submission that Sam was a fiduciary both in respect of Salvatore’s bank accounts and in his use of the Power of Attorney, and the trial judge erred in law in finding otherwise.

However, in my view, the trial judge made no error in concluding that Sam did not act in breach of his fiduciary obligations. On the trial judge’s findings, Salvatore authorized all of the impugned transfers. Therefore, when Sam acted as attorney to transfer assets to himself, he was fulfilling Salvatore’s instructions. Where a donor has capacity, the attorney is primarily informed by the donor’s instructions, and the attorney is not in breach of their obligations if they follow those instructions.

In Richardson (Estate Trustee of) v. Mew, 2009 ONCA 403, 96 O.R. (3d) 65, at para. 49, this court referred to the following description of the prohibition against using a power of attorney for personal profit, citing Egli v. Egli, 2004 BCSC 529, 28 B.C.L.R. (4th) 375, at para. 82, aff’d 2005 BCCA 627, 262 D.L.R. (4th) 208:

It is the attorney’s duty to use the power only for the benefit of the donor and not for the attorney’s own profit, benefit or advantage. The attorney can only use the power for his or her own benefit when it is done with the full knowledge and consent of the donor. [Emphasis added; citations omitted.]

In this case, as the trial judge found, Salvatore had full capacity and knowledge, and he consented to the impugned transfers. In fact, Salvatore instructed his attorney, Sam, to make the transfers.

In these circumstances, despite being a fiduciary, Sam was entitled to use his powers as attorney to effect the transfers for his own benefit.”

         Falsetto v. Falsetto, 2023 ONCA 469 (CanLII) at 27, 45-52.