Verwoord v. Goss, 2014 BCSC 2122

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Verwoord v.

Goss, 2014 BCSC 2122 Date: 20141110 Docket: 10-2523 Registry: Victoria Between: Caroline Yvonne Margaret Verwoord Plaintiff And: Tetje Yfke Marianneke Goss, Dennis Xavier Goss, Joshua Goss, Jason Goss, Justin Goss, Lena Verwoord, Cindy Verwoord and William Lubartus Vanderboor Defendants - and - Docket: 10-2482 Registry: Victoria Between: William Lubartus Vanderboor Plaintiff And: Tetje Yfke Marianneke Goss, and Dennis Xavier Goss, Executor of the Will of Lubartus Vanderboor, Deceased Defendants - and - Docket: 11-2470 Registry: Victoria Between: Caroline Yvonne Margaret Verwoord Plaintiff And: Dennis Xavier Goss, Tetje Yfke Marianneke Goss, Joshua Goss, Jason Goss, Justin Goss, Cindy Verwoord, Lena Verwoord and William Lubartus Vanderboor Defendants - and - Docket: 13-2961 Registry: Victoria Between: Caroline Yvonne Margaret Verwoord

Petitioner And: Dennis Xavier Goss Respondent Before: The Honourable Madam Justice J. A. Power Reasons for Judgment Counsel for C.Y.M. Verwoord: P. J. Klassen Counsel for W. L. Vanderboor: B. J. Kitzke D. Goss and Goss Defendants: Self-represented by D. X. Goss Place and Dates of Trial/Hearing: Victoria, B.C. October 8-11, 2013 October 15-18, 2013 October 21-25, 2013 October 28-November 1, 2013 November 4-8, 2013 November 18-21, 2013 November 25-29, 2013 December 2-6, 2013 January 27-31, 2014 Place and Date of Judgment: Victoria, B.C.

November 10, 2014 Table of Contents INTRODUCTION .. 3 THE PARTIES .. 5 THE ACTIONS .. 7 THE WILLS .. 8 DEFENCE POSITION .. 13 CREDIBILITY .. 14 FACTUAL OVERVIEW ... 18 REVOCATION OF THE POWER OF ATTORNEY .. 31 THE MEDICAL EVIDENCE .. 37 GENERAL PRINCIPLES CONCERNING THE ADMISSIBILITY OF OUT-OF-COURT STATEMENTS 41 LEGAL ANALYSIS .. 43 SHOULD THE COURT ORDER AN ACCOUNTING? .. 50 CONCLUSION .. 53 INTRODUCTION [ 1 ] This case relates to the last years of life of Lubartus Vanderboor (“Bart”), who was born in the Netherlands, and moved with his wife Anna and their young family to Canada: first to Alberta and then to Victoria, B.C., in the 1950s.

Bart died on March 31, 2010 in Victoria. He was a strong-willed, private and fiercely independent man whose decline became apparent with the illness and subsequent death of his wife Anna in 2008/2009. Bart’s death was preceded by resistance to his decline and loss of independence, as well as a dispute between his three surviving children about his diagnosis of dementia and his health care needs. This trial relates to his estate. [ 2 ] Bart died having executed three wills which were at issue in this trial: a May 16, 2003 will (the “2003 Will”) which was

partially altered and partially confirmed by a codicil dated May 8, 2008 (the “Codicil”), an August 5, 2009 will (the “2009 Will”), and a March 8, 2010 will (the “2010 Will”). According to the evidence, the 2010 Will was destroyed by Bart shortly after it was made, so the question of whether Bart died intestate is at issue. [ 3 ] Also at issue in this litigation is whether Bart had the requisite capacity to make the 2009 and 2010 wills.

There is also an allegation of undue influence in respect of both of these wills. [ 4 ] In January 2010, just prior to his death, Bart transferred his family home into a joint tenancy in his name along with that of his eldest daughter, Thea. He also purchased a condominium in Sooke, B.C., which was then held in joint tenancy with Thea.

Therefore, the validity of these inter vivos transfers, whether they were gifts, and the issue of whether they were made as a result of the undue influence of Thea and her husband Dennis Goss, are all at issue in this trial. [ 5 ] By the time of Bart’s death, much of the estate had been dissipated and the real estate assets comprised the bulk of Bart’s estate.

The result of all of this, were it permitted to stand, is that the bulk of Bart’s estate would go to a daughter who was estranged from the family for about 30 years prior to Bart’s death. [ 6 ] The trial related to a number of actions which were heard together since they arose out of the same set of facts.

There are also a number of ancillary orders that are sought including orders that monies improperly expended by the defendants be repaid to the estate. [ 7 ] For the reasons that I will outline below, I have concluded that Bart lacked capacity to make the 2009 Will, and that in any event, even if he did have capacity, he was under the undue influence of his daughter Thea and son-in-law Dennis when he made that will. Further, Bart continued to lack capacity when he made the 2010 Will and the alleged gifts of the house and condo to Thea.

Further, that will and those gifts were made as a result of the undue influence and are void. THE PARTIES [ 8 ] Since many of the names are lengthy and for clarity, I will refer to the various parties by their first names as the parties themselves did throughout the trial. In so doing, I mean no disrespect to the parties. Lubartus Vanderboor (“Bart”) [ 9 ] As indicated, Bart is the testator whose wills are at issue in this trial. Bart died on March 31, 2010 at the age of 89. He was predeceased by his wife Anna and his son John.

The dispute in this case is primarily between his three surviving children, Bill, Thea and Caroline. Anna Vanderboor (“Anna”) [ 10 ] Anna was born in the Netherlands. She met and married Bart there. They had four children together: Bill, Thea, John, and Caroline. She predeceased Bart, dying on May 12, 2009 at the age of 85. She was predeceased by her son John. The majority of the events that give rise to this trial occurred after Anna’s death. William Lubartus Vanderboor (“Bill”) [ 11 ] Bill (also called “Will” by some of the witnesses) is the eldest child of Bart and Anna.

He never married and lived alone with a disabled pet pigeon, “Pidge,” whom he rescued from his balcony and nursed back to health. Bill is the plaintiff in one of the actions, and a defendant in another.

He is generally common in interest to his youngest sister Caroline and argues that Bart lacked capacity to make the 2009 and 2010 wills and that his sister Thea and her husband Dennis Goss exerted undue influence over Bart during the last year of Bart’s life. [ 12 ] It is clear from the evidence at trial and his presentation as a witness that Bill has a mercurial and emotional personality and that he is prone to emotional outbursts. He admitted that himself at trial. It is also clear that he was a loyal son who loved both of his parents and was particularly close to his mother Anna.

Tetje Yfke Marianneke Goss (“Thea”) [ 13 ] Thea is the eldest daughter of Bart and Anna. She married Dennis Goss in 1977 and together with him is the defendant in the actions. She was named alternate executor to Dennis under the 2009 and 2010 wills. She and Dennis have three children: Joshua, Jason, and Justin, who are also defendants in the actions. Thea lived in Washington State during her marriage, and was estranged to some degree from her family for much of that time. Although Joshua, Jason and Justin are named in the actions, their interests were represented by their mother and father, Thea and Dennis Goss.

Dennis Xavier Goss (“Dennis Goss”) [ 14 ] Dennis Goss is Thea’s husband and Bart’s son-in-law. During their marriage he qualified as a criminal defence attorney in Washington State. He represented himself and spoke on behalf of the Goss defendants during the trial. He has a forceful personality, which is evident from his writings, his own evidence and his presentation of the defence case during the trial.

He was named Power of Attorney for Bart and executor under the 2009 and 2010 wills. [ 15 ] Even though Dennis Goss is legally trained, he was not trained in British Columbia law and practice and it was necessary on occasion throughout the trial to provide him information and guidance about British Columbia courtroom procedure. For example, when Dennis Goss testified, he was permitted to do so with a witness

summary which he had prepared primary to his testimony. Caroline Yvonne Margaret Verwoord (“Caroline”) [ 16 ] Caroline is the youngest daughter of Bart and Anna. She is married to Wayne and lives in Victoria, B.C. She has two children,

Lena and Cindy. Caroline is the plaintiff in the main action. Although her daughters Lena and Cindy are named in the actions and in the wills, their interests were represented through their mother Caroline. Caroline was named as first alternate executor to Anna under the 2003 Will and named as joint executor under the Codicil. She was named General Power of Attorney and Health Representative at the time the Codicil was executed in 2008. THE ACTIONS [ 17 ] Action #10-2523 is the main action wherein the plaintiff Caroline Verwoord seeks a declaration or Order:

a) that the 2009 Will is invalid and the letters probate issued to Dennis Goss as executor be revoked and that the 2003 Will and 2008 Codicil be admitted to probate;

b) that the inter vivos gifts be declared void and the real property be transferred back into the estate; and,

c) that the defendants Thea Goss and Dennis Goss be ordered as a joint and several obligation to repay to the estate certain funds improperly expended. [ 18 ] Action #10-2482 is the action brought by the plaintiff William “Bill” Vanderboor. He is common in interest to his sister Caroline and seeks many of the same orders. He argues that his sister Thea is holding the real property in trust for and on behalf of the estate and argues that the condominium should be transferred directly to him since it was purchased for him.

In his action he also makes a claim under the Wills Variation Act . [ 19 ] Action #11-2470 is an alternative action brought by Caroline Verwoord under the Wills Variation Act . [ 20 ] Action #13-2961 is an action brought by petition which I allowed to be heard at the same time as the trial.

A number of orders are sought pursuant to that petition foremost among which is that Dennis Goss be removed as executor and trustee under the 2009 Will and an alternate executor be named. [ 21 ] A final action (Action #11-1747) brought by Dennis and Thea Goss relating to a $10,000 gift cheque from Bart and Anna to Caroline was not pursued and was dismissed by way of a Consent Dismissal Order during the course of the trial. [ 22 ] Prior to the start of the trial I ordered that all the evidence heard in the trial will be applied to each of the actions.

THE WILLS The 2003 Will [ 23 ] Bart and Anna prepared wills in 2003 which were mirror images of each other. [ 24 ] In his 2003 Will, Bart appointed his wife Anna as executor and gifted his entire estate to Anna if she survived him for seven days.

If Anna failed to survive him for that period, his daughter Caroline was named as executor and trustee. [ 25 ] In simple terms, the residue clauses provided for the estate to be divided into six equal shares, with one share going to his daughter Caroline, one share to be divided between Caroline’s two daughters, Lena and Cindy, one share to his daughter Thea, one share to be divided equally between Thea’s sons Joshua, Jason and Justin, one share to his son Bill, and one share to be held in trust for Bill, which was to be used to purchase or lease a residence for him. [ 26 ] A statutory declaration under the Wills Variation Act (“ WVA declaration”) was made at the same time in 2003, and referenced Bart’s “fundamental intention to distribute the residue of my estate in three equal shares …” He described that in his view it was “necessary and appropriate to establish a trust for William.” This related to Bart’s concern about Bill’s financial stability and long-term financial future. [ 27 ] In the 2003 WVA declaration, Bart further spoke about the need to divide Thea’s share between Thea and her sons since “… were I to leave a one-third share in the residue of my estate to Thea outright it would be dissipated in a very short period of time.

In my view, Thea is dominated by her husband, Dennis, and that he would control the disposition of any moneys which she received from my estate.” Bart went further and spoke about his concern that Thea and Dennis had a “substance abuse problem … including the frequent use of marijuana.” [ 28 ] Bart went further and indicated that, notwithstanding the rationale in respect of Thea, “… I consider it appropriate in order to treat my two daughters in an even handed fashion that Caroline also receive a one-sixth share of the residue of my estate with a further one-sixth share to be distributed amongst Cindy and Lena.” [ 29 ] It is clear that in 2003, Bart’s overarching intention was an equal division between his children, while dealing with his specific concerns with respect to his son Bill and daughter Thea.

The 2008 Codicil [ 30 ] In May 2008, just prior to leaving on an ill-fated European vacation, Bart and Anna executed codicils which again were mirror images of other. [ 31 ] By that Codicil, Bart made some changes to his 2003 Will. This included minor changes to his executor and trustee provision. Thus, if Anna survived Bart, Caroline would be joint executor and trustee and could act separately from Anna. [ 32 ] The provision with respect to Bill was changed so that the two equal allotted to Bill were now to be held in trust on his behalf.

The revised clause authorized the trustee to purchase or lease a residence for Bill, and/or to purchase an annuity for him. This clause also

granted the trustee discretion to terminate the trust and distribute the capital to Bill. [ 33 ] A WVA declaration accompanied the Codicil and again reflected Bart’s rationale: the equal treatment of his three children, the concern with respect to Bill’s financial responsibility, and the concern with respect to Thea’s financial responsibility and her domination by her husband Dennis. [ 34 ] At the time of the 2008 Codicil, a Power of Attorney and Representation Agreement was granted to Caroline.

The Power of Attorney was enacted just prior to Anna’s death on the recommendation of two of Bart’s geriatric specialist physicians. The 2009 Will [ 35 ] In July 2009, the Power of Attorney to Caroline was revoked and two lawyers at the law firm “Berge, Hart, Cassels,” were substituted by way of a new Power of Attorney.

Shortly thereafter, Bart’s new lawyer Lynda Cassels took his instructions and prepared a new will. [ 36 ] On August 5, 2009 Bart executed a will appointing son-in-law Dennis executor and trustee and his daughter Thea alternate executor. [ 37 ] Under this will, Bart’s estate was divided into twenty equal shares with six shares to be provided to Thea, three shares to Caroline, six shares to Bill in trust, and five shares equally among the grandchildren. [ 38 ] Two WVA declarations were signed in September 2009 shortly after 2009 Will was prepared.

The second one was sealed by Lynda Cassels who prepared the will and the declarations. Ms. Cassels was instructed by Bart only to unseal it in the event that the will was challenged. The second WVA declaration was not unsealed until Ms. Cassels testified at trial. [ 39 ] In the 2009 WVA declaration, Bart states that “I have decided to gift Caroline a lesser share of my estate than her siblings because of the manner in which she has treated me, as set out in this Declaration.

Her actions have caused me great pain and expense.” He went on to make statements about Caroline, including that she had breached his trust by, for example, taking advantage of him when he was most vulnerable at the time of his wife’s illness and death, removing his wallet and credit cards and debit cards, trying to prevent him from talking to Dennis and Thea, cremating Anna contrary to his and Anna’s religious beliefs, redirecting all mail to Caroline’s address, removing financial documents from his home and refusing to return them, selling a holiday property for a price half of what it was worth, and arranging for Bart’s driver’s licence to be revoked.

In the declaration Bart indicates that Dennis and Thea were not exerting undue influence over him and that he had approached them to assist him. [ 40 ] In the second sealed 2009 WVA declaration (Exhibit 55), Bart provided the reasons why he did not have a close relationship with Dennis and Thea for many years. He stated “… Anna and I were distant in our relations with Thea and Dennis for many years, largely because it took a long time for us to accept that Thea would marry someone of Dennis’ ethnicity and would move to a different country. (Dennis is partly American Indian).

I knew very little about Dennis and I judged him without knowing him …” [ 41 ] In the second sealed WVA declaration, Bart indicated that he made statements in the 2008 WVA declaration about Dennis and Thea which he regretted and that he was “surprised” by those statements.

He explains that the “… only explanation that I can think of for the 2008 declaration is that I did not read it closely when I signed it.” [ 42 ] In submissions Dennis Goss described this second sealed WVA declaration as “the missing puzzle piece,” thereby implying that it provided him with information as to Bart and Anna’s attitude towards him that he did not previously know.

However, such a submission is absurd, since it is clear from the evidence that Dennis Goss knew that Bart had expressed such views and Dennis Goss referenced these views himself in letters to the various authorities prior to the disclosure of the sealed WVA declaration at trial. He had even joked with Bart about such views.

Further, the fact that Bart required the second WVA declaration prepared and sealed, when he had joked about such views with Dennis Goss, provides some insight into his lack of sound reasoning at the time. [ 43 ] In September 2009, Bart signed new Powers of Attorney which replaced his lawyer, Lynda Cassels with Dennis and Thea Goss. Dennis Goss acted as Power of Attorney from September until Bart’s death in March 2010. [ 44 ] The 2009 Will was submitted for probate by Dennis Goss as executor. The estate value was listed as $247,400.11, because of the inter vivos real estate transfers of the house and condo.

The 2010 Will [ 45 ] The 2010 Will, which was prepared with the assistance of a Notary Public and was allegedly destroyed by Bart shortly after it was signed, purported to tinker with his estate distribution again. [ 46 ] The Notary Public, Thomas Anderson, testified at trial. It is clear from his evidence that his memory is somewhat compromised through no fault of his own. Mr.

Anderson had a significant fall after the will was prepared and prior to his testimony at trial, and he has suffered memory difficulties as a result of that fall. [ 47 ] Since the Goss defendants acknowledge that Bart lacked capacity at the time of the 2010 Will, l I do not intend to detail the distributions under it. In my view, the preparation and execution of the 2010 Will only serves to confirm that Bart did not understand the nature of the inter vivos real estate transfers (which were also done by the same Notary Public) and the effect of those transfers on his estate.

Further, he did not understand the degree to which his estate had already been dissipated by actions which had been taken by Dennis Goss. The fact that Bart chose to make such a will shows the degree to which he was obsessed with his estate planning and demonstrates his lack of faculties surrounding his financial affairs. [ 48 ] Of note is that the Goss defendants did not reveal the existence (and destruction) of this will until it came to light during the pre- trial preparation for a prior (2012) trial date even though they were aware of it and had assisted Bart in contacting the Notary Public to

prepare it. This lack of disclosure exemplifies a pattern of deceit and self-interest that in my view permeates all of the Gosses’ actions inthis matter.

Of further note is that the inter vivos transfers were done without a full estate plan review, as recommended by Bart’s lawyerLynda Cassels in November 2009, when Dennis Goss contacted her again to relating to the inter vivos transfer of the North Dairy House. [49] The 2010 Will came to light since the plaintiff Caroline Verwood, as part of pre-trial preparation, had attended at the office ofthe Notary Public to find out more about the inter vivos transfers of the real estate.

In that meeting the Notary Public mentioned the will.That disclosure led to the 2012 trial being adjourned to allow for more time for the plaintiffs to discover more information about thewill. DEFENCE POSITION [50] The Goss defendants argue that Bart had capacity both to revoke the Power of Attorney to Caroline and to execute the 2009Will. They submit that the unequal division under that will represents Bart’s deep unhappiness with Caroline over her manytransgressions against Bart and Anna during the time that Bart was most vulnerable, during Anna’s illness and subsequent passing.

Thedefence argue that Caroline has no one to blame but herself for the unequal division in the 2009 Will. [51] Additionally, the Goss defendants argue vehemently that Bart did not have Alzheimer’s dementia. They base this argument ontheir own knowledge of Alzheimer’s disease and on the opinion of a general practitioner who conducted a test in January 2010, a testwhich Bart passed.

They argue that all of the medical practitioners who opined that Bart was suffering from dementia did so becausethey conducted highly visual and verbal tests when Bart had difficulty both with his vision and his hearing. [52] Many aspects of the Goss defendants’ position are contradictory, inconsistent and shifted during the course of events in thiscase so that is difficult to entirely reconcile the defence position. For example, the defendants argued initially in 2009 that Bart should bepermitted to drive, but then appeared to acknowledge that he should not be driving.

Dennis Goss described the sealed WVA declarationwherein Bart expressed his bias towards American Indians and Mr. Goss as “the missing puzzle piece,” but he knew about that opinionwell before it was unsealed during the course of the trial and referenced it himself in his correspondence. They argue that I should notaccept the notary public Mr. Anderson’s evidence about the will, but that I should accept his evidence about the transfer of the NorthDairy house into joint tenancy with Thea.

At trial, Thea represented the condominium as Bill’s, but in a pre-trial letter, Dennis Gossrepresented it as a gift to the Gosses by Bart so that it is impossible to determine what the Goss position is in respect of thecondominium. These kinds of inconsistencies are evident throughout the defence case so that it was difficult at times to make sense oftheir arguments. CREDIBILITY [53] The truthfulness, reliability and accuracy of the parties’ accounts of the events in question are key issues for determination aspart of the fact finding process.

In undertaking this fact finding process I take heed of the guidance from the Court of Appeal in Faryna v.Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) that I must consider the preponderance of the probabilities evidentin the circumstances, and consider the evidence as a whole (para. 11).

I am also mindful that truthfulness and reliability are notnecessarily synonymous. [54] In finding the facts in this case, I wish to state at the outset that I accept the evidence of Caroline Verwoord without reservation.Dennis Goss described her in his submissions as “the most polished witness,” and I conclude that her evidence was polished because shewas speaking the truth. [55] Despite the fact that extraordinary and damaging allegations were made against her by Dennis and Thea Goss and that after July2009 she was isolated from her father, even being prevented from visiting him at the time of his death, Caroline provided her evidence ina straightforward and balanced manner.

Although she clearly is not close to his sister Thea or brother-in-law Dennis, she spoke factuallyand only became emotional when she spoke about the passing of her mother and father. [56] It is my view that Caroline’s evidence is both internally consistent as well as being consistent with all of the external evidence.It is also my view that Caroline’s evidence accords with common sense.

While I accept that prior to his passing Bart was angry atCaroline for his perception of her involvement in his affairs, as Caroline herself acknowledges, I conclude that Bart’s anger was borne ofhis own unhappiness with his declining abilities. Bart’s emotionality was in the nature of lashing out at someone close to him, asopposed to anger based on reason. Further, I find that Bart’s anger at Caroline was encouraged by the Goss defendants.

In so doing, theywere settling a life-long score with Caroline while self-interestedly increasing their own inheritances. [57] Similarly, I accept the evidence of Bill Vanderboor, whom I found to be an honest and straightforward witness. I do not findthat his evidence differs markedly from the evidence of Caroline and in most respects supports it. As I have indicated, Bill is a muchmore emotional and volatile person than Caroline and to the extent that his evidence conflicts with Caroline’s it is my view thatdifference comes from his emotional and at times naïve perception of events.

For example, he supported his parents in their desire forBart to continue driving, when driving was clearly not in Bart’s best interests. [58] In the course of events in this case, Bill’s loyalty shifted from Caroline to Thea and Dennis Goss, and then more closely toCaroline again by the time the trial commenced.

In closing submissions Bill’s counsel argued that the evidence shows the quality ofCaroline’s character and that Bill would support her appointment as executor should it be necessary for the Court to appoint one. [59] Although I heard in closing submissions that Dennis Goss has been charged with perjury in Washington State, I wish to statethat I have disabused my mind of that statement and I have no idea whether or not it is accurate.

In my view whether or not he has beencharged with perjury is irrelevant to anything that I must consider since he has not been convicted of that offence. [60] However, I do have serious credibility concerns with respect to both Dennis and Thea Goss. There are numerous examples ofinconsistencies in their evidence. These inconsistencies are both internal and external to the evidence.

For example Dennis’ e-mail toLynda Cassels updating her in late January 2010 just after the transfer of the North Dairy house, and Thea’s e-mail to Caroline and Bill inFebruary 2010 stating that three doctors had conclusively determined that Bart did not have Alzheimer’s dementia, were both false. I

conclude those e-mails were sent to shore up the transfer of the family home as an inter vivos gift. Further, in late January 2010, the Gosses instructed doctors at the hospital that they did not want Bart’s cognition tested.

I find that this was done to ensure that the transfer was not compromised by any poor test results. [ 61 ] I find that Dennis and Thea Goss had financial challenges throughout their married life (Dennis Goss conceded in cross- examination that he had declared bankruptcy twice) and that throughout the events in question they were motivated by their financial self-interest. [ 62 ] The only thing that I do accept without reservation from Dennis and Thea’s evidence is that they did have some genuine feelings of warmth and affection for Bart, and that their involvement with Bart commenced with Bart’s request for help.

However, their affection was recently developed, since they had seen him very infrequently in the last 30 years and the request for help was borne of Bart’s delusions as opposed to any rational need for help. [ 63 ] Although throughout the case Dennis Goss presented all of the evidence as reflecting Bart’s wishes, going so far as to submit the defence witness list as “Bart’s witness list,” it is my view that this position was founded on self-interest and the desire to preserve the Goss position. [ 64 ] It follows, therefore, that everywhere the evidence of Caroline Verwoord conflicts with the evidence of the Goss defendants, I specifically accept Caroline’s evidence over the evidence of Thea and Dennis Goss.

Further, I accept the evidence of Bill over Dennis and Thea Goss. [ 65 ] One of the ironies of this case is that all of the accusations levelled against Caroline by Bart and the Goss defendants were the actions that the Goss defendants took themselves. For instance, they accused Caroline of having transferred the North Dairy House into her own name, when in fact she had simply had delivered to her home a new copy of the title certificate for that property, which indicated that title had been transferred solely into Bart’s name after Anna’s death.

For their part, the Goss defendants succeeded in getting the house transferred into Thea’s name, and represented it as a gift to them at trial. I conclude that the Gosses were judging Caroline’s actions through the lens of their own actions and based on what they would do in similar circumstances.

In that sense, the plaintiff’s closing submission that I should “follow the money,” is an apt one. [ 66 ] As a final observation on the issue of credibility, having heard all of the evidence in this case, I conclude that if Caroline had been permitted to remain Power of Attorney and executor of Bart’s estate, Bart’s personal, healthcare and financial affairs would have been prudently managed during his lifetime and all three siblings with their children would have likely received in excess of $400,000 as an equal share of his estate.

Such an approach was clearly Bart’s wish as reflected in the 2003 Will and 2008 Codicil. [ 67 ] Instead, the estate has been dissipated by the actions of the Goss defendants. Indeed, close to $400,000 was expended in the nine months between July 2009 and Bart’s death in March 2010 alone. That, and the fact that the Goss defendants isolated Bart from his children Bill and Caroline during the last months in his life, constitute the great tragedy in this case. FACTUAL OVERVIEW [ 68 ] This trial was lengthy and the evidence complicated largely because of the complex family dynamics at play.

One thing all of the parties seem to agree on is that the family was dysfunctional. There are allegations and evidence that touch on this, including possible unauthorized entries into Bart’s house, a missing deadbolt to Bart’s front door, missing diary pages from Bart’s diary, a missing black book of Anna’s where she recorded information about the family, and what was described as an “egging incident” when Bart’s house was “egged,” allegedly by Caroline, shortly after she was removed as Power of Attorney.

With the possible exception of the egging incident, much of that evidence raised more questions than it answered and did not assist in the ultimate questions that I must decide. [ 69 ] Since the trial was lengthy, I propose to give a general overview and then reference certain aspects of the evidence as it relates to the issues I must decide. It is my view that the trial was lengthy mainly because the plaintiff Caroline Verwood had to answer an extraordinary series of allegations made against her which were not well founded and had no basis in fact.

As a result, although the trial was unnecessarily long, the plaintiffs cannot be faulted for the length. [ 70 ] As I have indicated, Bart and Anna were born in the Netherlands and they met and married there. They had two children in the Netherlands, their eldest son Bill (age 63 at the time of trial) and eldest daughter Thea (age 60 at the time of trial).

They emigrated to Canada in the early 1950’s and had two more children, a son John born in 1957, and a daughter Caroline born in 1959 (age 54 at the time of trial). [ 71 ] Bart and Anna’s life in Canada was initially very modest and all of their belongings came over in a small crate. That simple life continued and they brought a frugality and cautious approach to their finances throughout their lives.

The result of all of this is that Bart’s estate if intact at the time of his death, would have been worth in the range of $1.2 million. [ 72 ] After settling first in Alberta, the young family moved to Victoria, B.C., a city Anna loved. Bart worked as a plumbing draftsman. After initially living in rented accommodation in the Glanford area of Victoria, in 1967 Bart and Anna bought a house at 1586 North Dairy in Victoria.

This was the house that they lived in for the rest of their lives, and is the house that was transferred into Bart and Thea’s name as joint tenants in 2010 just prior to Bart’s death. [ 73 ] Caroline provided the bulk of the evidence surrounding her childhood and the family life. Although it is clear that like many families, there was a certain amount of dysfunction, it appears that Bart and Anna were loving parents who placed their children at the centre of their lives. A family friend who testified at trial, Hendrika Teleeuw Den Bouter (“Henny”) confirmed this.

The level of dysfunction and distrust that existed between the siblings appears to have exacerbated around the time of Anna’s illness and subsequent passing. [ 74 ] Since Caroline was the youngest child, it follows that she remained at home the longest. She described a happy childhood and

strong relationships with both parents. She left home at the age of 18 and married her husband Wayne. She has lived in Victoria her entire life. She followed her parents’ example and has achieved financial success through hard work and a careful approach to her finances. As I have indicated, Caroline and Wayne have two children, daughters Lena and Cindy. It is clear from the evidence that Caroline is the most responsible and financially stable of the siblings.

Therefore Bart and Anna’s choice to name her as alternate executor and Power of Attorney in 2003 and 2008 was a logical one. [ 75 ] Caroline’s life has not been without some challenges. In the year 2000 her husband Wayne suffered a major stroke and is now permanently partially disabled. Although he can no longer work, Caroline has worked with him on his rehabilitation so that he can now drive a vehicle. He communicates in short sentences. Wayne did not testify at trial, although their daughters Lena and Cindy did.

It appears from all of the evidence that Bart and Anna had a warm and friendly relationship with Wayne, and were naturally upset by his health challenges. A $10,000 gift to Caroline, originally the subject of an action that was dismissed by consent, was used to purchase exercise and rehabilitation equipment for Wayne after his stroke. [ 76 ] When Bill left home, he moved to Vancouver and has held various positions over the years. He was employed at a radio station in Vancouver for many years.

Although his financial resources are relatively modest, he remained employed over the bulk of his working life and was able to provide for himself, although it is clear that his parents worried about his long-term financial security. He too remained close to both parents over the years, and when living in Vancouver he would frequently come back to Victoria to visit with his parents, and to try to assist them as they aged. [ 77 ] Bill moved back to Victoria in the summer of 2008 after his mother became ill. He did so in order to be close by and to provide some assistance to his parents.

At the time of trial he was working two jobs, one in security, and the other delivering the Victoria Times Colonist newspaper. [ 78 ] When Thea left home she married Dennis Goss and then moved with him to Washington State. Shortly after her marriage she returned to Victoria and lived in Victoria alone for a period of time, but then returned to live with Dennis Goss in Washington State. She has three children, all boys, Joshua, Justin and Jason. Joshua and his wife Lauren provided some care for Bart after Anna died in the summer of 2009. [ 79 ] After she left Victoria, Thea did not return very often for visits.

For example, she returned in 2002 for her brother John’s funeral, and then not again until 2009 to visit her mother in hospital just prior to her mother’s death. Caroline testified that Thea was invited to many family occasions over the years including Bart and Anna’s 50th wedding anniversary in 1997, and their 60th wedding anniversary in 2007. However, Thea did not attend. Nevertheless, she appears to have stayed in touch with her parents, and there are letters in the materials between Thea and Anna. [ 80 ] As I have indicated, John predeceased his parents, dying as a result of suicide in 2002.

John’s funeral is one of the rare instances in which Thea returned to Victoria in the more than thirty years since leaving. It appears that there were some family disputes that occurred as a result of her attendance. Caroline expressed the view that Dennis Goss rushed her parents to a lawyer in order to deal with John’s estate immediately after the funeral. Caroline was of the view that her parents should have been given time to grieve, and there was no need for such a rush. [ 81 ] In terms of sibling relationships, it is clear from the evidence that once they became adults, Caroline and Thea were not close.

Caroline and Bill supported each other in caring for their parents as they aged. Caroline organized family celebrations such as holiday dinners, birthdays and anniversaries and regularly hosted her parents and Bill on such occasions. Henny gave evidence about going for dinners at Caroline’s house when she was visiting from the Netherlands. [ 82 ] Bart and Anna remained independent and lived in their home on North Dairy right up until Anna’s illness and subsequent passing. After Anna’s death Bart had some homecare and continued to reside there.

Bart and Anna’s favourite activities included going for meals at restaurants including the Appletree in the Hillside Mall, located just across the street from their home, and at Romeo’s restaurant in the Broadmead Shopping Centre. They also enjoyed going for drives along the waterfront in Victoria. Bart continued driving up until 2008 and 2009, contrary to the recommendation of his general practitioner. He ignored a request from the Motor Vehicle Branch to attend for testing. [ 83 ] The fact that Bart was still driving was a source of concern for Caroline. That concern was well-founded on the evidence.

Bart and Anna were unwilling to look at other transportation options that Caroline suggested, such as handyDART, a program for the elderly and disabled run by BC Transit. Notwithstanding her concerns, Caroline did not initiate Bart’s loss of driving privileges. It is clear that this was initiated by his physicians. [ 84 ] Despite this, the evidence establishes that Bart and Anna blamed Caroline for the loss of Bart’s driving privileges. This erroneous belief led to a deterioration in their relationship with Caroline.

Events Leading Up to Anna’s Passing [ 85 ] Notwithstanding her concern about his continued driving, it was not apparent to Caroline the degree to which her father was declining cognitively until 2008. [ 86 ] In May of that year, Bart and Anna had a trip to Europe planned. They were to take a cruise which ended in Venice, and then were travel to the Netherlands to visit with Henny. [ 87 ] Just prior to the trip, Bart and Anna attended at their lawyer to update their 2003 wills by way of a codicil. As I have noted, that Codicil named Caroline as joint executor.

Power of Attorney and Health Representation Agreements naming Caroline were also executed at that time. [ 88 ] Caroline drove her parents to the bus station in Victoria so that they could catch a Greyhound Bus to the airport in Vancouver. She noted that her parents had packed an old suitcase which was tied by a rope, and which clearly would not survive plane travel. When

they got to the bus station, Caroline quickly drove to purchase a suitcase, and returned to help her parents repack their belongings. [ 89 ] At the bus station Caroline noticed that her father was behaving strangely. Among other behaviours, he kept looking for his tickets and worrying that he had lost them. [ 90 ] The trip was several weeks long, and in the words of Henny was “not successful.” Both Bart and Anna got sick on the cruise and were confined to their cabin for much of the trip.

When they arrived in the Netherlands, Henny was shocked by their appearance and how much they had aged compared to when she had seen them the year prior. During their visit, Henny essentially nursed them back to health and had to take steps such as reminding them to take their medication. She also noted that Anna had to care for Bart because he was very forgetful. In Henny’s view, Anna had to do “nearly everything” for Bart because of his limitations with his memory.

In her evidence, Henny described other incidents relating to Bart’s declining faculties, including an incident where Bart got lost and disoriented on the way to the bathroom in a restaurant. [ 91 ] Henny communicated these concerns to Caroline by e-mail once Bart and Anna returned to Canada. Henny queried Caroline whether it was safe for Bart and Anna to continue to reside alone in the house on North Dairy. [ 92 ] When Bart and Anna landed in Vancouver, Bill met them at the airport and stayed overnight with his parents at a hotel.

It was clear that his mother was very ill and he phoned Caroline to advise her of this. It was difficult for Bill and Caroline to ascertain from Bart exactly what had happened on the flight back to Canada, his story kept changing and in the words of Caroline, “he was not a reliable historian.” It is clear however that Anna had some kind of medical difficulty during the flight home. [ 93 ] In advance of her parents return home to Victoria, Caroline stocked the fridge and pantry in their home with various perishables to assist in making their return more comfortable.

She did this routinely during her parents’ absence on vacation and had been provided a key by Bart and Anna for that purpose and to check on the house. In so doing she became aware of several seriously expired items in the fridge and noted other concerns regarding the state of the house including apples from the previous year that were rotting in a drawer. [ 94 ] Caroline also called Bart and Anna’s general practitioner, Dr. Goodchild, seeking advice as to Anna’s condition. Dr.

Goodchild advised Caroline to take Anna to emergency when she returned. [ 95 ] On their return to Victoria, Caroline picked up Bart and Anna at the bus station. However, Anna would not allow Caroline to take her to the hospital. She wanted to return home to sleep it off. By the next day, it became apparent that Anna required hospitalization. Caroline received a call and attended at the hospital, where she found Bart and Anna at emergency.

Anna was suffering from atrial fibrillation and was hospitalized for a few days. [ 96 ] During this hospitalization, Caroline kept both her brother Bill and sister Thea advised as to Anna’s admission and discharge. Although there was a dispute at trial as to whether or not Caroline provided “updates,” and the evidence at trial only supports that Caroline advised Thea of Anna’s admission and discharge, I do not find this impacts on Caroline’s credibility at all.

I conclude that Caroline kept her siblings apprised of all meaningful events with respect to Anna’s hospitalization. [ 97 ] During Anna’s hospitalization, Caroline started caring for her father during the day, but he continued to remain at his house on North Dairy at night. She received some support from Home Care services for Bart which were provided at no expense on an emergency basis. During this period of time she increasingly noticed issues with Bart’s memory and ability to care for himself. For instance, Bart was unkempt and was not showering or brushing his teeth.

Food in his refrigerator remained untouched, which was of concern since Bart was diabetic and regular meals were important for his well-being. It became obvious to Caroline that her mother had been covering for Bart’s memory difficulties for some time. [ 98 ] While Bart was visiting Anna was at the hospital, a liaison nurse voiced concerns about Bart and suggested that he be seen by the Quick Response Team (“QRT”), which is a service available through the Vancouver Island Health Authority (“VIHA”).

Bart was seen at his home by a QRT clinician, Sandi Otway, who noted on a form that he was not oriented to time and date, was not remembering recent events, and was not sure how to check his blood sugar. The update form completed by Sandy Otway dated June 28, 2008, noted that there was reduced caregiver capacity. That reference reflected the evidence I heard at trial, which included that his wife was in hospital but also that daughter Caroline had other caregiving responsibilities as a mother and caregiver for her husband Wayne. [ 99 ] Sandi Otway referred Bart to his general practitioner, Dr.

Goodchild, and requested that Bart be referred to Geriatric Services, a service available through VIHA. She also recommended that Bart stop driving pending more formal assessments of his capabilities. In response to that recommendation, and to protect both Bart and the public generally, Caroline locked Bart’s car keys in the trunk of his car in order to ensure that he did not have access to them. This measure was only to last until Bart was seen by Dr. Goodchild. [ 100 ] Dr. Goodchild saw Bart in his office on July 2, 2008. Dr. Goodchild had been Bart’s general practitioner since 1990.

Caroline took her father to the appointment but did not attend in the treatment room with Bart. The concerns Dr. Goodchild addressed included Bart’s cognition, ability to manage with his wife in hospital, and his ability to drive. Dr. Goodchild conducted a mini mental status examination that day and Bart scored 22/30. A note by Dr. Goodchild in Bart’s chart indicates “Dementia nos” (not otherwise specified). Dr. Goodchild recommended that Bart not drive pending a more formal geriatric assessment. Caroline had no input into that recommendation. In her notes, Lynda Cassels indicates that Bart told her that “Dr.

Goodchild was hammering on the Alzheimers several times.” Dr. Goodchild did not in fact do this at any time during his appointments with Bart. [ 101 ] This was not the first time that Bart had a geriatric referral. As early as 1999, Bart had self-reported concerns about his memory, and he had also expressed concerns about the onset of dementia and possibly Alzheimer’s to Dr. Goodchild. [ 102 ] It was as a result of Dr. Goodchild’s second referral in 2008 and in the context of the more formal geriatric assessment that Bart was seen by Dr. Marilyn Bater and Dr.

Bryan Mestelman, geriatric specialists, who both testified at trial. [ 103 ] Anna was released from hospital on July 4, 2008 and over the next nine months until the time of Anna’s death, it is clear that Bart and Anna’s relationship with Caroline was strained. Bart and Anna blamed Caroline for the loss of Bart’s driving privileges. It is

clear that Bart and Anna resented any interference with their independent lives. As a result, they kept many of their medical consultations private and did not involve Caroline. Bart instructed his medical practitioners not to speak to Caroline. Caroline described this in her evidence, and it is also referenced in Dr. Goodchild’s clinical chart as well as the clinical records of other practitioners. [ 104 ] For example, Caroline never met Dr. Bater, whom Bart was referred to as part of his geriatric referral, until after Anna passed away in May 2009.

As another example of the strained relationship, Caroline was hurt that on her birthday December 24, 2008, her parents did not celebrate with her as was their usual tradition, but instead phoned her late at night when she was already going to bed. Caroline found her parents to be secretive, and conversely, Bart repeatedly accused Caroline of spying on him. [ 105 ] Although their relationship was more difficult that it had been in the past, Caroline continued to be in contact with her parents and to provide them with support whenever she was permitted by them to do so.

It is clear that Bart and Anna were angry and frustrated by the change in their lifestyle which was occasioned in large part by Bart’s inability to drive. [ 106 ] On May 5, 2009, Bart and Anna were at the hospital on a follow-up visit to Dr. Bater. Over the course of that visit, it became clear to Dr. Bater that Anna was in medical distress and required emergency admission to the hospital.

Unfortunately, the degree of distrust and dysfunction between the siblings hardened over the course of Anna’s hospital stay. [ 107 ] During this hospitalization, Bill phoned his sister Thea in Washington State, although Caroline had advised him not to. Caroline denies this. In my view, nothing turns on this. I am satisfied that Caroline would have called Thea and Dennis Goss, as she had the previous year, when information about Anna’s condition was clear. I reject any suggestion that Caroline was lying to the Gosses about Anna’s condition.

As it turned out, Dennis and Thea came to Victoria from WA as a result of Bill’s call. They had a visit with Anna, and returned to Port Orchard, WA while Anna was still in hospital. [ 108 ] During Anna’s last hospitalization, Caroline again assumed primary care for Bart. Ultimately, that involved setting up 24-hour home care with Beacon Home Care, a home support service. Home care was set up in order to allow Bart to stay in the house on North Dairy as Bart wished to do.

Initially, the homecare was set up for 24 hours, but Caroline’s plan was to eventually scale it back once Bart’s needs became clear and the situation stabilized. A caregiver named Dennis Vance appeared to provide primary care during this time. Dennis Vance was not called at trial by any of the parties and I draw no adverse inference from this since it was open to either side to call him. [ 109 ] At this time, Bart was resistant and suspicious of Caroline’s interventions and repeatedly accused her of spying on him.

He clearly lacked insight into his own limitations and was blaming Caroline for them. [ 110 ] Caroline contacted Dr. Bater and Dr. Mestelman, Bart’s geriatric specialists at VIHA, to get their views on whether the Power of Attorney over Bart’s affairs should be activated. As Anna was in the hospital and was not expected to survive, both doctors were of the view that the Power of Attorney should be activated, and each provided a brief letter to support this. [ 111 ] Dr. Bater, who is a consultant geriatrician with VIHA, wrote a letter dated May 8, 2009 directed to Mr.

John van Cuylenborg, Bart’s lawyer at the time. It reads: This gentlemen has Alzheimer dementia and is lacking insight into his care needs and is exhibiting poor judgment. I understand he has established a power of attorney and a health representative and these should be enacted immediately as his wife is in hospital and unable to support him. [ 112 ] Dr. Mestelman is a Geriatric Psychiatrist, and his letter is dated June 1, 2009. His letter reads: I assessed Mr. Vanderboor on May 27, 2009. My impression is that he suffers from dementia and is not capable of managing his finances.

I understand his daughter Caroline Verwoord has POA. I would support his daughter in activating this POA. [ 113 ] Caroline spent some time while her mother was in the hospital contacting banks and updating herself on her father’s affairs. It is clear from her actions that Caroline felt a sense of urgency that the Power of Attorney should be activated since Bart was vulnerable to influence.

As events subsequently transpired, Caroline’s concerns were prescient and her urgent attention to the Power of Attorney was appropriate. [ 114 ] The situation came to a head one morning at the hospital just prior to Anna’s passing, when Bart approached Dennis Goss, hugged him and whispered “Help me, Help me.” His approach in this manner was unusual since Bart had not been close to Dennis Goss over the years.

In his evidence, Dennis Goss described this hug as only the second time in his life he had been hugged by Bart. [ 115 ] Anna’s hospitalization was brief, and she passed away on May 12, 2009 as a result of a stroke. Events After Anna’s Passing [ 116 ] Immediately after Bart’s request for help at the hospital, Dennis Goss began a campaign to assist Bart which, although perhaps initially well-intentioned, was not well-considered. At the hospital he started questioning Caroline as to Bart’s diagnosis and rejected Caroline’s response that she did not have any detailed knowledge of Bart’s diagnosis.

Since Caroline had been kept at arm’s length by her parents since her mother’s hospitalization the previous year, Caroline’s response was in fact correct: she did not have detailed knowledge. In many respects her information was limited to what was contained in the letters. [ 117 ] Dennis Goss attempted to make contact with some of Bart’s healthcare practitioners. He was only able to reach Dr. Bater as the latter was about to board a ferry departing Victoria. As a result, this was a brief conversation during which Dennis did not obtain any detailed information about Bart’s diagnosis and limitations.

[ 118 ] Notwithstanding this lack of detailed knowledge, Dennis and Thea began supporting Bart and assuring him that he did not have Alzheimer’s. They based that conclusion on their observations of Bart during the short time they had spent with him, as well as their own personal experience with Alzheimer’s, which involved fifteen years of living with and caring for Dennis’ father who also had Alzheimer’s. [ 119 ] Dennis Goss wrote an e-mail to Bill in an attempt to attempt to obtain further information about Bart’s situation.

Bill provided a lengthy response which was referenced in the evidence. [ 120 ] When Dennis and Thea returned to Port Orchard, they began phoning Bart from Port Orchard every evening and reassuring Bart they would help him. This pattern of behaviour continued with Dennis and Thea reinforcing Bart’s belief that there was nothing wrong with him.

It is clear from the evidence that Bart was enjoying the attention from Dennis and Thea after being estranged from the Gosses for so long. [ 121 ] Notwithstanding his lack of any detailed knowledge surrounding Bart’s diagnosis and health care needs, Dennis Goss immediately determined the way to help Bart was to ensure that Caroline’s Power of Attorney was revoked. He did so by writing letters under his letterhead as an attorney in Washington State. I find that he wrote the letters on letterhead in order to give them added credibility.

The letters included letters to the Public Trustee making a series of allegations about Caroline, a letter to the law firm Cook, Roberts which had prepared the 2003 Will and 2008 Codicil and letters to the College of Physicians and Surgeons, complaining about Dr. Goodchild, Dr. Bater and Dr. Mestelman. The complaints about the doctors included what Dennis Goss characterized as a rushed and unsubstantiated diagnosis of Bart. Eventually Dennis Goss wrote a letter of complaint to the Law Society about the lawyer at Cook, Roberts who prepared the 2008 Codicil.

Ultimately, all of these complaints were dismissed by the respective organizations. [ 122 ] Much of this was occurring without Caroline’s knowledge since she was attempting to deal with her mother’s passing and her father’s healthcare and personal needs.

Under the 2003 Will and 2008 Codicil, Caroline was executor of her mother’s estate (Bart did not wish to act), and Power of Attorney for Bart, since this had now been activated. [ 123 ] As part of her responsibilities, Caroline attended at a funeral home and arranged for her mother’s cremation since Anna’s will indicated that she wanted her funeral to be “simple and inexpensive.” Bart was present when Caroline made the arrangements and Caroline consulted him about the arrangements and he appeared to acquiesce. [ 124 ] Subsequently, Bart blamed Caroline for cremating Anna when cremation was contrary to his Christian beliefs.

However, an entry in Bart’s diary indicates that he was planning on three cremations (Bart, Anna and Bill), and when son John died years earlier, he had been cremated. Accordingly, Caroline’s decision about what constituted “simple and inexpensive” was entirely in keeping with what she thought her mother’s and father’s wishes were. [ 125 ] During this time, Bart’s behaviour was unpredictable and irrational. For example, he declined to speak at Anna’s service, but then accused Caroline of stealing his notes and delivering his speech at the service.

He accused Caroline of stealing various financial documents and personal papers when in fact he had declined to act as executor for Anna and had acquiesced with Caroline taking the papers to her car. He acquiesced with selling a Harrison Hot Springs vacation property to long-time acquaintances and neighbours at the holiday park for what I am satisfied was fair market value, but then accused Caroline of selling it for one-half of its value. [ 126 ] In his evidence, Bill spoke about Bart’s rapid change in emotions and attributed Bart’s behaviour to the “disease” rather than to “the man.” Dr.

Bater wrote in her expert report, “… he was changeable in his opinion depending on the social setting and those around him.” [ 127 ] On a day to day basis, Bart was unable to remember even the simplest of things. On assuming her duties, Caroline set up a new bank account containing $1,000 in order to ensure that her father had ready access to cash and a feeling of independence. She gave Bart a PIN number for the bank account. However, Bart could not remember it so that the PIN had to be reset at least three times.

Bart accused Caroline of withholding his credit cards, but in reality they had to be cancelled because he misplaced them. Bill made similar observations as Caroline did about Bart’s limited memory. [ 128 ] Much of Bart’s frustration and anger after Anna’s passing was directed at Caroline, although at times he would be docile and cooperative. Dr. Bater who saw Bart and Caroline together in June 2009, noted that Caroline was respectful and concerned for her father’s well-being. Bart appeared to appreciate Caroline’s efforts. This was particularly noteworthy to Dr.

Bater since she was aware that Bart had been very angry with Caroline for his perception of her actions the previous year. REVOCATION OF THE POWER OF ATTORNEY [ 129 ] Dennis Goss ultimately obtained the name of another law firm to represent Bart and in late June began communicating with Lynda Cassels, a lawyer in that firm. Exhibit 43 is a binder of communications between Lynda Cassels and Dennis Goss which represents the extensive nature of that communication.

Initially Bart told Lynda Cassels that he should not speak to Dennis Goss about his finances but then changed his mind and authorized her to speak to Dennis Goss. [ 130 ] It is clear from that communication and her actions that Lynda Cassels accepted as true many of the allegations Bart made against Caroline which I find to be false. Ms. Cassels met with Bart privately but also received much of the information from Mr. Goss.

By way of example, by e-mail on June 30, 2009, Dennis Goss wrote: He is so afraid of what Caroline will do and how she will react that he needed to call me to ask me what we could do to keep her from pummeling him with her vicious hatred. He asked if the restraining order we mentioned in your office was something he could do. [ 131 ] On that same date Dennis Goss wrote: I prefer Bart keeps your appointments then [sic] allow Caroline to attempt to nail his coffin shut. He advised Thea today that if we had not stepped in and assisted him, he probably would have seriously considered suicide.

According to Bart, Caroline probably prepared 80% of Anna and his Wills, and that is why he wants to terminate and/or revoke his current Will ASAP. [ 132 ] On July 2nd Dennis Goss wrote: I do not mean to be a pest, but, Bart does not want to leave his current Will in place and wants it cancelled sooner than later.” [ 133 ] Dennis Goss’s communication with Lynda Cassels included relaying Bart’s wishes and he even drafted a new will for Ms. Cassels’ consideration, which he said reflected Bart’s wishes.

Dennis Goss was also, as early as late June, representing Bart’s wish to transfer or gift the North Dairy house to the Gosses even though when Lynda Cassels acted for Bart that never happened. Further, the wish to transfer the house was to acknowledge everything the Gosses had done for Bart, which at that point was not that much, and did not compare to what had been done by Caroline and Bill over the years. [ 134 ] In early July, Dennis and Thea Goss took the ferry over from Port Angeles to take Bart to a meeting with lawyers.

Dennis Goss had prearranged with Bill to take Bart from his home to a downtown motor inn to await the Gosses’ arrival, and to take him to the lawyers. This was done secretly, without Caroline’s knowledge, to ensure that Caroline could not intervene to prevent the revocation and new Power of Attorney. Lynda Cassels was aware of this, and implicitly accepted the representations by Dennis Goss that such secrecy was necessary. [ 135 ] As part of the process that day, Ms. Cassels had Bart attend at another lawyer, Brenda Milbrath, to avoid a conflict, since the new Power of Attorney was appointing Ms. Cassels’ firm.

Ms. Cassels’ firm prepared the documents and Bart attended at Ms. Milbrath’s office to execute them. Ms. Milbrath met with Bart for 30 to 45 minutes and was satisfied that Bart had capacity to revoke the Power of Attorney and sign a new Power of Attorney and Representation Agreement. She determined that the documents represented his wishes and that he had the legal capacity to execute them. [ 136 ] Once the documents were executed that day, Bill described the sense of elation and the celebratory atmosphere in the car on the way back to Bart’s home.

Thea kept telling him “[d]on’t worry Bill, we will take care of you.” Bill was confused by that and did not know what had occurred at the lawyers’ offices or what it all meant. Later that day, Dennis Goss served Caroline with notice that she was no longer Power of Attorney by ringing her doorbell and saying words to the effect “consider yourself served.” [ 137 ] Caroline was confused with these events and how Bart, who required her assistance since he could not manage his own affairs, could even execute a new Power of Attorney.

She was also disappointed and confused by the way she had been ostracized by the family. She concluded that she had been the victim of a family that was even more dysfunctional than she realized. She soon thereafter relinquished her responsibilities as executor of her mother’s estate and returned all the documents in her control to her lawyer’s office.

It became clear on a review of the documents that there was no financial malfeasance on Caroline’s part, and Bart himself acknowledged this in his new WVA declaration. [ 138 ] Shortly after the revocation of the Power of Attorney, Caroline was accused by the Goss family of egging the North Diary house on July 8, 2009, or of having directed someone else to egg the house. The Gosses even reported this matter to the Saanich police. I accept Caroline’s testimony that she did not do so.

I further accept Bill’s evidence that the house on North Dairy is on a busy road across from the Hillside Mall and such incidents were not unheard of in the neighbourhood. I agree with the plaintiff’s submission that the evidentiary value of the testimony around that incident is that it serves to show the degree to which the Dennis and Thea were enhancing and solidifying their position with Bart. Further, by leading Bart to believe that Caroline had committed the incident, Dennis and Thea enhanced their position with Bart and reinforced his delusion that he had to fear Caroline.

Events After The Revocation Of The Power Of Attorney [ 139 ] During the summer of 2009, Lynda Cassels acted as Power of Attorney for Bart and managed his financial affairs. On August 5, 2009, Bart signed the 2009 Will, which had been prepared by Lynda Cassels. On September 9, 2009, he signed documents which named Dennis and Thea Goss under new Powers of Attorney. When these were executed, Brenda Milbrath again met with Bart and confirmed her opinion that he had capacity to execute them. [ 140 ] It is clear on the evidence that Bart’s instructions to Lynda Cassels were constantly changing.

That in itself raises concern. By way of example, on June 25, 2009 Bart told Lynda Cassels that he did not want Dennis to be Power of Attorney and that he finds his son- in-law too forceful, but by September, Bart’s instructions had changed and he wanted Dennis and Thea to be Power of Attorney in order to keep it in the family. Further, in June, Bart indicated that he did not want his finances discussed with Dennis and Thea, but that Lynda Cassels could discuss procedure. [ 141 ] Immediately on revocation of the Power of Attorney, Dennis Goss made it clear that “things were going to change” and they did.

Beacon Home Care was dismissed as caregivers for Bart, and initially grandson Joshua Goss and his wife Lauren stayed at the house with Bart and provided homecare. They were paid $3,000 each month plus an allowance for travel and groceries. Dennis Goss provided these instructions to Lynda Cassels. [ 142 ] All photographs of the family were removed and pictures of the Goss family were substituted. Bill and Caroline were isolated from Bart.

Bill saw Bart only rarely after July 2009 and Caroline only saw him twice, once in December 2009 when she delivered a poinsettia plant for Christmas, and once in February 2009 when she had a chance encounter with him at Romeo’s Restaurant in Broadmead. On both occasions she was shocked by his deterioration. [ 143 ] Commencing in July 2009, Dennis and Thea spent a great deal of time in Victoria with Bart and a calendar of dates they were in Victoria was introduced as part of the evidence.

During the evening they would have “table talks” where Bart would express his feelings and opinions. [ 144 ] Bart continued to exhibit unusual behaviour during the summer of 2009 which even the Goss defendants acknowledge. In August 2009, Dennis Goss reported to Lynda Cassels that Bart was not showering, and was using the bathroom sink to urinate in.

[ 145 ] Bart was taken to a new doctor Shauna Tierney and Dr. Tierney testified for the defendants at trial. [ 146 ] During this time, spending of Bart’s resources increased substantially. Bart went from being what some witnesses described as “Mr. Hot Chocolate,” a frugal gentleman who ordered a hot chocolate and shared a sandwich with his wife when he went out for a meal at the Appletree restaurant, to having expensive meals at the Empress and other restaurants in the company of various members of the Goss family.

Between October 2009 and December 2009, Bart “gifted” $81,500 to the Goss family. [ 147 ] Eventually, in late September 2009, Clayton Ferguson, a student at the University of Victoria, was hired to provide homecare for Bart. Clayton Ferguson was paid to provide overnight care, and was provided with a household allowance for food and other necessaries. In January 2010, just prior to Bart’s death, Dennis Goss, on Bart’s instructions, purchased a new car for Clayton to drive. That car was gifted to Clayton even though Bart had only known Clayton for a short time.

That action was justified during trial as being much less expensive than the cost of continuing Beacon Home Care. However, it is my view that this does not make sense since Clayton Ferguson had not negotiated a car as part of his compensation. [ 148 ] In late January 2010, Dennis Goss, again purportedly acting on Bart’s instructions, also purchased a new car for Bill. This car was purchased without any input from Bill including whether Bill needed a new car or what type of car he wanted.

A condominium was purchased in Sooke, again purportedly for Bill, and without any meaningful input from Bill as to his wishes and needs. The condominium that was eventually purchased was a matter of concern, to Bill since he was unsure whether Pidge would be able to live with him freely or whether he would have to keep Pidge in a cage. [ 149 ] Many of the actions during this time period seem completely illogical and are hard to comprehend.

For example, the car for Bill was being purchased by Dennis Goss purportedly fulfilling Bart’s wishes, during a time in late January that Bart was in hospital and was so ill that he was eating Kleenex dipped in apple juice. Bill was not even advised that his father was in hospital and was ill. Similarly, Caroline was not advised that her father was in hospital. [ 150 ] As I have indicated, close to $400,000 was expended between July 2009 and Bart’s death in March 2010. One of the expense items was a burial plot and elaborate headstone for Bart, Anna and Bill.

Other expenditures included hearing aids for Bart, new clothing for Bart, Bill and other Goss family members, improvements to the North Dairy house including a security system and the two cars and the condominium I have referenced. While not all of the expenditures were wasteful (for example, the hearing aids), many of them were. [ 151 ] Under Dennis Goss’s control, Bart’s funds were being dissipated at an alarming rate. All of the expenditures were represented at trial by Dennis Goss as reflecting Bart’s wishes and Bart’s bucket list.

However, spending in this manner was completely out of character for Bart. [ 152 ] In January 2010, the transfer of the North Dairy house to Bart and Thea as joint tenants occurred and in March 2010 the last will was executed. Dennis and Thea’s evidence around what happened to that will is vague, self-serving and contradictory. For example, Dennis Goss suggested that the court should accept the evidence of the notary Mr.

Anderson with respect to the inter vivos transfer of the North Dairy residence, but that the court should reject his evidence around the will since by that point they argue that Bart lacked capacity. [ 153 ] The Gosses took Bart on a trip to Port Orchard in March 2010 in an attempt to revive his flagging health and spirits. They had to return to Canada on an emergency basis when Bart’s health took a turn for the worse. Bart died at home on March 31, 2010 and Caroline was not permitted to see him in his last days. THE MEDICAL EVIDENCE [ 154 ] Caroline Verwoord called four doctors who treated Bart.

The defendants called Dr. Tierney and an audiologist, John Sylvester. I have referenced the medical evidence in the factual narrative but will briefly outline that evidence here. Dr. Goodchild [ 155 ] Dr. Goodchild testified as an expert general practitioner and was therefore entitled to give opinion evidence. I permitted him to give evidence in this manner even though an expert report had not been filed in accordance with Rule 11-7 of the Supreme Court Civil Rules . After considering Rule 11-7(6), I concluded that the interests of justice required me to permit Dr. Goodchild’s expert evidence in this manner.

I did so because the defendants had ample disclosure of Dr. Goodchild’s file and his medical opinion and they had received extensive disclosure as a result of Dr. Goodchild’s reply to the complaint about him to College of Physicians and Surgeons. Dr. Goodchild had declined to provide an expert opinion for the plaintiff, and I concluded that it was reasonable to conclude that he did so because of the complaint that had been made about him by the Goss defendants. This complaint about Dr.

Goodchild was dismissed as unsubstantiated. [ 156 ] It was my view that the Goss defendants were not prejudiced in any manner by my ruling since they had ample disclosure of Dr. Goodchild’s opinion, but that the plaintiff would be prejudiced if I did not allow Dr. Goodchild to testify as an expert. Prior to his testimony Dr. Goodchild was reminded of his duty to assist the court and not be an advocate for either party as required by Rule 11-2. [ 157 ] Dr. Goodchild was Bart’s family physician for twenty years. He confirmed that he was contacted in July 2008 by the QRT team and saw Bart on July 2, 2008.

On that day he conducted a mini mental status examination test. Bart scored 22/30. As a result of that test, Dr. Goodchild requested that Bart be examined by geriatric services at VIHA. As noted above, Dr. Goodchild’s initial diagnosis was “Dementia nos” (not otherwise specified.) He recommended that Bart should not drive until his geriatric assessment was complete. He confirmed that Caroline had nothing to do with persuading him that Bart had dementia or that he should not drive.

He confirmed that in July and August 2008 both Bart and Anna were very upset by Bart’s loss of driving privileges. [ 158 ] A review of other parts of Dr. Goodchild’s file indicated that Bart had expressed concern about the onset of memory-related issues and dementia as early as 1999.

[ 159 ] I am satisfied on the basis of Dr. Goodchild’s evidence that although Bart had some hearing deficits, Dr. Goodchild was completely satisfied that Bart could hear him while the test was performed and that the MMSE test results of July 2, 2008 were valid. Dr. Bryan Mestelman [ 160 ] Dr. Bryan Mestelman was qualified as an expert in psychiatry with a special interest in geriatric psychiatry. As with Dr. Goodchild, Dr. Mestelman was permitted to testify as an expert even though he had not filed an expert report. I did so for the same reasons as with Dr.

Goodchild; that the defendants had ample disclosure of Dr. Mestelman’s expert opinion as a result of Dr. Mestelman’s replies to the College of Physicians and Surgeons surrounding the complaint made about him by the Goss defendants. As with Dr. Goodchild, this complaint was dismissed as unsubstantiated. [ 161 ] Dr. Mestelman conducted an assessment in Bart’s home on May 27, 2009. He was accompanied by a social worker, Cheryl Henry. Dr. Mestelman and Cheryl Henry interviewed Bart separately in order to validate their independent interviews. He also conducted mental status testing on which Bart performed poorly. Dr.

Mestelman formed the opinion that Bart was displaying cognitive impairment. [ 162 ] In his consult notes to Dr. Bater Dr. Mestelman wrote: Mr. Vanderboor is an 88-year-old man who has displayed cognitive impairment for at least 1 year and perhaps over several years. … There have been questions about decreased nutrition intake and food preparation. I believe this likely is related to a dementia process of either an Alzheimer’s or mixed Alzheimer’s vascular type. … I do not feel that Mr. Vanderboor is capable of managing his own finances.

I also do not feel that he is capable of changing his power of attorney given his lack of insight into his own deficits and the reasons behind why his daughter has become more involved. [ 163 ] Dr. Mestelman stated that Bart lacked insight into his own deficits and no insight into the fact that he could have his driving ability assessed. [ 164 ] Dr. Mestelman indicated that there was evidence of Bart having mild hearing deficits, but that he spoke loudly and was satisfied Bart understood what he was saying. He further indicated that test results can be improved through practice. Dr. Marilyn Bater [ 165 ] Dr.

Bater was qualified as an expert witness in geriatrics and was called by the plaintiff Caroline Verwoord. She did provide an expert report and a responsive report to Dr. Shauna Tierney. Dr. Bater’s reports were filed as Exhibit 14. [ 166 ] Dennis Goss also filed a complaint about Dr. Bater to the College of Physicians and Surgeons and that complaint was dismissed as unsubstantiated. [ 167 ] Dr. Bater confirmed that she was involved with Bart because of a referral she received from Dr. Goodchild. She also confirmed that she did not receive any collateral information from Caroline. [ 168 ] Dr.

Bater conducted testing on Bart on July 24, 2008 and he scored 22/30 on the MMSE and 69/100 on the 3MS test. She was satisfied that the test results were accurate, and was satisfied that Bart’s difficulty hearing had no impact on the test results.

She provided compelling evidence that she is used to dealing with patients with hearing impairment, that she herself has a hearing impairment and she was unshaken in her evidence that Bart could hear her during the testing. [ 169 ] She described Bart’s diagnosis as mixed dementia Alzheimer’s plus vascular and indicated that her letter supporting the enactment of Power of Attorney was dictated when she was away from her office so that the diagnosis in the letter was not complete. [ 170 ] Dr.

Bater told Bart that the Motor Vehicle Branch would take away his licence on the basis of this test results, but that she would ask Motor Vehicles to do a road test since she was aware how important driving was to Bart and Anna. [ 171 ] Dr. Bater confirmed that the first time she met Caroline was on June 4, 2009 and that she noted how respectfully and appropriately both Bart and Caroline were acting towards each other which was of note to her since she was aware how angry Bart had been at Caroline. [ 172 ] In respect of Dr. Tierney’s test results, Dr.

Bater stated that a diagnosis of dementia cannot rest on test results alone. Dr. Shauna Tierney [ 173 ] Dr. Tierney was called by the defence and testified as an expert witness in general medicine. She graduated in 2008 so that when she dealt with Bart in 2010 and 2011, she only had fourteen months of experience since she was on maternity leave for part of that time. [ 174 ] Dr. Tierney saw Bart a total of six times for a total of six hours.

She confirmed that Bart told her that Caroline had manipulated healthcare officials, locked him out of his bank accounts, and put him under surveillance. [ 175 ] In January 2010, Dr. Tierney conducted a MMSE and Bart scored 26/30. [ 176 ] Dr. Tierney was of the view that Bart had mild cognitive deficits and acknowledged that he would be vulnerable to influence. She opined that Bart was not suffering from dementia since he did not perform poor enough on the test results. Dr. Ripley [ 177 ] Dr. Ripley was a hospital physician who treated Bart during his stay in hospital in late January and early February 2010. Dr.

Ripley was not qualified as an expert, but testified as a fact witness surrounding Bart’s condition when he was in hospital. [ 178 ] He also testified that he was told by Thea that the family did not want Bart’s cognition tested. John Sylvester [ 179 ] I do not intend to outline the evidence of the consulting audiologist, John Sylvester. While I accept that Bart had some hearing deficits, I am not satisfied on the evidence that those deficits had any impact on the cognition test results. I accept the evidence of Drs. Goodchild, Bater and Mestelman that they did not.

GENERAL PRINCIPLES CONCERNING THE ADMISSIBILITY OF OUT-OF-COURT STATEMENTS [ 180 ] During the course of the trial a number of out-of-court statements of individuals who were not called as witnesses at the trial were led. By way of exa

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