Andrew v. Andrew Date:, 2016 BCPC 125

Citation: Andrew v. Andrew Date: 20160405 2016 BCPC 0125 File No: 13253 Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: ROSE LILLIAN ANDREW CLAIMANT AND: CHARLOTTA FRANCINE ANDREW DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. DYER Counsel for the Claimant: S. Rauch Appearing on her own behalf: Charlotta Andrew Place of Hearing: Pemberton , B.C.

Dates of Hearing: March 17 and 18; June 18; October 27, 2015 Date of Judgment: April 5, 2016 [ 1 ] In this action commenced on July 26, 2013 Rose Andrew seeks damages or court orders to have her youngest daughter Charlotta Andrew reimburse her for certain monies or personal property (a 2004 Chevrolet Aveo) which Charlotta is alleged to have misappropriated while acting as her attorney pursuant to a written Enduring Power of Attorney granted by Rose to Charlotta on June 20, 2011.

Charlotta denies that she acted improperly while her mother’s attorney on and after June 20, 2011 and seeks in a counterclaim “to recover a fair amount for work she or her spouse Lindsay Pascal did for her mother Rose both before and during the time” she was acting as her power of attorney. I would point out that Rose’s oldest daughter Rosa was first appointed her mother’s power of attorney in 2005 and held same to June 20, 2011 - some six years when Rose revoked it and then named Charlotta as her sole attorney pursuant to an Enduring Power of Attorney (Exhibit. 1).

Rose’s first power of attorney was not placed in evidence at trial. [ 2 ] Both the claimant and defendant are First Nations persons and at all material times have resided in Mount Currie, B.C. [ 3 ] For ease of reference and meaning no disrespect to any person involved in this law suit, I will use first names as was done in Sommerville 2014 BCSC 1848 by Fisher J.

Where I refer to ages of various people they will be as at the date of these reasons where I was provided with an accurate birthdate in the evidence at trial. [ 4 ] The mother Rose age 80 had 5 children with one Nick Andrew from whom she separated in about 1972. She did not remarry or repartner thereafter but for a period of time lived with one Warren off Mt. Currie lands. Two sons died in the decade of the 1980’s.

At trial 3 children remained living, namely, Rosa age 54, Wayne, a son approximately age 55, and Charlotta, the youngest daughter approximately 50 years of age. [ 5 ] Wayne is now unmarried but has 9 children including a 6 or 7 year old daughter Roxanne. He owns a small farm located some 3 kms from Rose’s home in Mt. Currie. He is generally not employed outside his farm. [ 6 ] Rosa is married to one Larry Williams and has 3 daughters, four grandchildren and lives in Mt. Currie some approximately 4 kms away from her mother Rose.

She works full time from 8:30 a.m. to 4:30 or 5:00 p.m. on school days as a teacher at the Mt. Currie Community School and has done so for the last 8 years. She pursued a Master’s Degree in leadership at UBC during Charlotta’s term as Rose’s power of attorney which at times required her regular attendance in Vancouver on one day each weekend. The evidence I was given on point was very vague. [ 7 ] Charlotta has 4 children from her relationship with one Edwin Bidaki. One is Kamana age 24 who testified at trial.

She is a full time student now living in Vancouver and attends Capilano University in 3 rd year and is pursuing a Bachelor’s degree in Business Administration which course she commenced in September 2012. She said without any challenge by counsel for the claimant that she was Rose’s closest grandchild and both lived with Rose for a period of time from 2008 to 2010 and testified that she spent more time with Rose than with her own parents. One of Charlotta’s 4 children is a daughter age 18 in April of 2016 one “Qeptsaka7” referred to by Charlotta’s current common-law spouse Lindsay Pascal as “Chalka”.

She is said to be severely disabled by reason of some condition affecting her legs and according to Charlotta and Lindsay requires their full time care 24/7 to such an extent that at all material times neither has been able to work at full time gainful employment outside their home. Charlotta for a time lived with her mother but at trial lived approximately 1 km away in Mt. Currie. [ 8 ] I was given very little evidence about the community of Mt. Currie at the relevant time during this action. My impression from all the evidence is that it is a rural community populated in the main with First Nations persons.

There is some evidence Mt. Currie at the material time had a bus system. Kamana said she used this service to get to and from her work when attending high school, however, there is no evidence that this service ran between Rose’s home and Charlotta’s home in Mt. Currie or if it did - when. The evidence is to the contrary. My clear impression from all the evidence in this case is that if one resides in Mt. Currie having the use of a functioning automobile is a necessity for any person particularly during the cold winter months if one aspires to go very far anywhere.

This necessity would be particularly acute for an older person needing, e.g. to attend on any sort of caregiver including medical doctors. [ 9 ] The precise losses which the claimant seeks to recover from the defendant are as follows:

(1) The sum of $8,112.00 being a sum of money which Rose received from ICBC on or about September 13, 2011. She alleges her daughter Charlotta spent this money without her knowledge or consent to acquire a 2004 Chevrolet Aveo motor vehicle and later on September 26, 2012 transferred it into her own name against without her consent.

(2) The sum of $2,277.57 being certain charges incurred with a motor mechanic in Pemberton in September 2012 to repair the Aveo motor vehicle again incurred without her knowledge or consent. The claimant really asserts the purchase of this car was an unnecessary and unwarranted acquisition one which should not have been made at all and that any repair costs are likewise inappropriate expenses for the defendant acting as her power of attorney to have incurred.

(3) The sum of $684.61 relating to an iPhone said again to be an unnecessary expenditure which the defendant acquired on September 27, 2012 in Rose’s name with automatic bill payments in this amount being debited to one of Rose’s accounts or credit cards.

(4) The sum of $343.00 which Rose alleges represented fuel costs Charlotta incurred for herself but charged to one of her accounts from October 17, 2012 to November 14, 2012. [ 10 ] Charlotta’s June 20, 2011 power of attorney was entered into in front of a notary public, one Patrick Kelly practising at the time in Pemberton and of course before the Power of Attorney Act (“ POA ”) was substantially amended effective September 1, 2011.

[ 11 ] There is no evidence that at the time this power of attorney was granted anyone explained to Charlotta what her common-law duties were as an attorney for her mother including Mr. Kelly. The old Power of Attorney Act in force in June 2011 is singularly unhelpful on point even if one were to have read it. [ 12 ] This June 20, 2011 power of attorney expressly states that Charlotta was empowered to do on Rose’s behalf anything that Rose could lawfully do by an attorney and it was not limited or subject to any express conditions or restrictions.

It does not expressly revoke any earlier power of attorney that Rose gave in favour of Rosa. Charlotta agreed that Rosa had called her in 2015 and advised her of her desire to be appointed and said she then agreed that this should occur.

Charlotta was then too busy to assist as she was dealing with her severely disabled daughter who then required 24/7 constant care. [ 13 ] Rosa testified that she did not know why her mother had revoked her power of attorney in favour of Charlotta on June 20, 2011, but seemed to be aware that the North Shore Credit Union where her mom then did her banking wanted to have her replaced as such. She did not know initially that her mom has replaced her. When she first learned of her revocation in favour of Charlotta, she was OK with it and for her younger sister to have a turn.

At the time, she was then enrolled at UBC studying for a Master’s degree. [ 14 ] Rosa said there were no family discussions in June 2011 as to what Charlotta would do as her mom’s attorney once she had this authority. [ 15 ] Rosa did not feel Charlotta had somehow twisted her mother’s arm to get appointed as her attorney replacing Rosa. Charlotta said her mom asked her to take on this task and that she in essence had not asked her mom to sign the document in her favour.

Charlotta said that prior to June 20, 2011 and as early as January 2011, she was assisting her mom with her finances really at the suggestion of the NSCU but was unsure she told Rosa she had become her mom’s power of attorney at their suggestion giving her an ability to assist in managing Rose’s financial affairs. She did tell Rosa that the NSCU was very concerned about their mother’s financial affairs in the Spring of 2011 and that Rosa should do something about them.

Rosa agreed that her sister had taken over the power of attorney for her as the NSCU was in early 2011 concerned over her mom’s financial situation. She was aware the balances on Rose’s credit cards were then quite high but felt her mother was nonetheless capable of looking after her own finances.

In cross-examination she said somewhat inconsistently that she had no idea why the NSCU wanted her replaced and denied it was because she wasn’t managing her mother’s financial affairs properly. [ 16 ] In January and February 2009 Rose was receiving correspondence from Canada Trust that her $11,484.64 loan was overdue and demanding immediate payment. In August and September 2010 Rose’s NSCU account was for 29 days of 30 in overdraft.

At January 2011 she owed $1,137.13 on a MasterCard with NSCU and on March 22, 2011 owed $11,626.61 on an MBNA credit card reduced to $11,414.06 at July 22, 2011 shortly after Charlotta became her attorney. [ 17 ] I conclude that towards the end of Rosa’s watch as Rose’s power of attorney, Rose’s financial affairs were not in very good shape. This was the situation Charlotta inherited in June 2011. [ 18 ] The above power of attorney in favour of the defendant Charlotta was terminated by the claimant in 2012.

On November 6, 2012 by means of a written notice prepared by the claimant and dated November 4, 2012 called an EVICTION NOTICE, the claimant purported to evict the defendant from her land and house. (Exhibit 6) It states as follows: November 4, 2012 EVICTION NOTICE Regarding Charlotta Andrew I am evicting you from my land and house. VALID REASONS FRAUD ELDER ABUSE LYING & SELLING DRUGS HARRASMENT, and theft . I am giving you 10 days to stop.

Yours truly, Rose Andrew Witness - Wayne Andrew [ 19 ] The defendant said it was delivered to her house (she was not then living at her mother’s home) on November 6, 2012 by her mother and brother Wayne. I should state immediately there is no evidence in this case that the defendant’s conduct towards her mother could ever fairly described as elder abuse or harassment or that she was ever violent towards her or involved in the sale of drugs.

There are things that she did not tell her mother however other than hiding her car keys on one occasion and suggesting they were lost to prevent the claimant from driving when she should not have been, there is no real evidence of Charlotta lying to her mother.

[ 20 ] On the same date the claimant prepared an eviction notice for the defendant’s daughter Psil which according to Charlotta was delivered by Rose to her at work at the Tsipun store on November 30, 2012 with Wayne waiting outside. It states: November 4, 2012 EVICTION NOTICE Regarding Psil Bikadi, I am evicting you from my land and house. VALID REASON is messing with my life line. Locking my door to my suite. I need to use my shower. I am giving you 10 days to be out.

Yours truly, Rose Andrew Witness - Wayne Andrew [ 21 ] According to Wayne, the defendant’s daughter had in November 2012 been living with the claimant Rose for approximately 5 years and he guessed she was helping his mom but he said he never saw her do so. [ 22 ] On December 5, 2012 there is a further document apparently handwritten by Rose purporting to revoke Charlotta’s power of attorney but no evidence as to if and when Charlotta might have received it. (Exhibit 5, tab 20) [ 23 ] On December 12, 2012 a solicitor one Peter Bonny prepared a Power of Attorney Revocation (Exhibit 1, tab 22) which was forwarded to Charlotta by registered mail on December 18, 2012 (Exhibit 5, tab 42).

In the same letter he requested that Charlotta return all personal property of her mother that she then possessed including the iPhone and Aveo motor vehicle and car keys. This letter and revocation was received by the defendant Charlotta. Section 28(4) of the Power of Attorney Act RSBC 1996 c.370 (hereinafter referred to as the POA ) provides that a revocation is effective when written notice is given to the attorney. I find this occurred absent evidence on point on or about December 25, 2012 giving Mr.

Bonny’s letter one week to reach Pemberton and get picked up by Charlotta. [ 24 ] Thus the legal duration of the defendant’s power of attorney was from June 20, 2011 to December 25, 2012 some approximately 18 months. [ 25 ] I should also mention that on December12, 2012 before Charlotta’s power of attorney was in my view legally revoked, the claimant gave a further enduring power of attorney to Rosa and Wayne (Exhibit 1, tab 23). This document compared to Charlotta’s power of attorney is far more complete on its face.

Later on July 23, 2014 Rose revoked this power of attorney and made out a new Enduring Power of Attorney in favour of Rosa (Exhibit 2). This four-page document is again far clearer on its face as to what Rosa as Rose’s attorney could properly do for Rose as compared to Charlotta’s power of attorney. [ 26 ] No issue exists in this case that at all material times Rose was competent enough to grant a power of attorney to her various children as outlined above. In support of having appropriate capacity, the claimant has filed 2 medical opinions - one from a psychiatrist Dr.

Chakraborty dated February 7, 2013 and the other from a neurologist Dr. Purves dated February 23, 2013. I will deal with Dr. Purves’ opinion below. This psychiatrist says this in

part in his February 7, 2013 opinion: Thank you for referring this 77 year old woman with a history of mild cognitive impairment for a psychiatric opinion. As you know she had a mild stroke in 2005 and apparently began to develop mild cognitive impairment with her short-term memory affected and the siblings sought Power of Attorney.

She came with her son Wayne and daughter Rosa, on February 7 th , 2013. [ 27 ] He makes reference to a period of time June 2011 to October 2012 when Charlotta held the power of attorney and then says this: During this time there was a concern that Charlotta was manipulating the mother into handing over money or assets as well as a sense that Charlotta and her partner were perhaps poisoning the mother by giving her toxic substances.

There is the belief that she collects “magic mushrooms” [psilocybin]; the brother Wayne has previously ingested them and is aware of the effects of them and could see that his mother would have periodic explosive rages that would subside after a day or two. This was apparently in the context of the youngest sister and her partner bringing food every day to the mother to eat. Apparently the older sister Rosa has challenged Charlotta upon this and the latter has not denied, but simply said that it is her “right” to have the money.

There is the inference that Charlotta has been manipulative and tried to play one sibling off against the other, but the two sibs (Wayne and Rosa) appear unified, and sought a legal opinion to arrest the Power of Attorney and release it to both of them as siblings to avoid any further misappropriations. [ 28 ] There is no evidence in this case that Charlotta ever manipulated her mother into handing over money to her e.g. to use improperly or that she or Lindsay Pascal ever fed Rose magic mushrooms. [ 29 ] Mr.

Pascal testified and said that in lunches he prepared daily for a considerable period of time from October 2002 to December 2012 and biked over to Rose’s place that he included, e.g. carrots and potatoes - whatever he and Charlotta grew and sometimes pine mushrooms. It was unclear whether Mr. Pascal cultivated these at their home or collected them in the wild. He denied that he has

poisoned Rose as Rosa and/or Wayne apparently suggested to Dr. Chakraborty on February 7, 2013. [ 30 ] I find his evidence to be truthful and not seriously challenged on Mr. Pascal’s cross-examination. This poisoning suggestion made by Rosa and Wayne was made without any basis and is nonsense. [ 31 ] Dr. Chakraborty continued in his letter: The mother has had mild alcohol concerns over the years but reports remaining sober since October 2012. Mental Status Exam - She mildly perseverates but was very pleasant and lucid.

At mini-mental state examination she scored 26 out of 30 dropping points on the date; on word-finding; on short-term memory she dropped a point; and on the 3-stage command she also dropped a point. This is of course above the dementia cut-off [23 out of 30]. Impression - There is evidence of mild cognitive impairment but she has sufficient capacity to provide informed consent to decisions around Power of Attorney.

We discussed this briefly and she recognized that Wayne and Rosa have her best interests at heart and that she has been vulnerable to manipulation by Charlotta and acknowledged that despite this, she is fiercely protective of her also Therefore I would support her in her ability to decision-make on this area. [ 32 ] At tabs 40 and 41 of Exhibit 1 there are will say statements for both Rose and Rosa. I have not and do not consider these to be properly part of Exhibit 1 or pieces of evidence.

Nonetheless I conclude that such a statement would not have been prepared for Rose if an earlier conscious decision had not been made that she had the capacity to testify in court at trial. There is nothing in either medical report to suggest at least in February 2013 that Rose was not able to do so. She is the claimant yet she chose not to testify before me at trial. I have no evidence that she was not competent to do so.

Thus she did not expose herself to a cross-examination - searching or otherwise as to exactly, for example, how her daughter Charlotta conducted herself in the 18 months in which she was her power of attorney, the frequency of visits in this period by Rosa and Wayne, the help they provided, where Charlotta took her and why, and her own use of alcohol. [ 33 ] I think it is important in this case - because the claimant mother’s allegation is that Charlotta in essence breached legal duties she owed to her while acting as her attorney that these allegations be put in context. [ 34 ] I consider it relevant and important to set out certain facts proven in evidence about the donor mother Rose.

This is because the defendant Charlotta did not exercise her powers in a vacuum but rather in the context of dealing with a unique donor. There is no question in this case in my view that the correctness of the decisions she made must be viewed having regard to the characteristics of the person she was acting as attorney for. [ 35 ] Both Rose and Nick Andrew, Rosa and Charlotta’s dad, attended residential school for 13 and 12 years respectively.

Rose’s experience thereat was such that she received a settlement of some form of claim in or about 2008 and the same was then used in part to acquire a Nissan Versa automobile. [ 36 ] There is no evidence led at trial that Rose was abused or maltreated while a student at such a school but it is hard not to take judicial notice (and I do) that generally speaking attendance by First Nations children at such places was not a positive experience for the vast majority of such children. [ 37 ] Rosa testified that following her parents’ separation in or about 1974, Rose moved off the reserve with nothing and at some point lived with one Warren, later returning to live on the reserve in a trailer.

Rosa thought her dad then got custody of all 5 children including herself. [ 38 ] At some point Rose was a community health care worker in Mt. Currie for 12 years. I was not provided with dates. [ 39 ] She acquired a property in Mt. Currie and at all material times has lived in a log cabin built thereon with the help of her sons. Charlotta’s spouse Lindsay Pascal also did some construction work on this dwelling and for some of it was paid by Rose. The home has an upstairs suite or apartment. Its sole source of heat is a wood stove.

From time to time people lived with Rose either in the upstairs suite or in a downstairs bedroom. These persons included Charlotta and Lindsay Pascal and their daughters Kamana and Psil and her son Wayne and his daughter Roxanne.

There is no evidence Rosa ever lived with Rose or that any of her children did. [ 40 ] Very little evidence was provided as to the state of Rose’s health leading up to her granting various powers of attorney to her children commencing in 2005 with a first grant to Rosa. [ 41 ] In 2005, Rose at age 70 suffered a mild stroke at which time she began to develop mild cognitive impairment with respect to her short term memory. Kamana recalled her grandmother Rose changed after this with her memory worsening and her becoming angry with people more frequently.

I understood she was referring to a time before Charlotta and Lindsay Pascal prepared lunches for her which at times including pine mushrooms.

[ 42 ] Kamana did not live with her mother Charlotta after 2008. She then lived with her grandmother Rose she estimated for 3 - 4 years prior to her graduating from high school. In 2010, she moved to Pemberton for 7 to 8 months. Eventually, she lived for approximately 10 months prior to August 2010 with her cousin Joey or in his home right next door to Rose’s home in Mt. Currie.

She saw her grandmother regularly during this time often daily. [ 43 ] Kamana testified that when her mother started to help out with Rose, which I understood to be in 2011, her grandmother Rose was very vulnerable, was drinking a lot and needed help and organizing on a daily basis. She was lonely and did not keep her house clean. [ 44 ] She always liked to drink especially wine and beer and her drinking worsened as early as 2009 when she started to show what Kamana described as symptoms of dementia which got progressively worse after Kamana moved out in or about 2010 following graduation from high school.

Kamana visited her daily thereafter when back in Mt. Currie for some time. Kamana felt that her grandmother was drinking heavily in 2010 when she was age 18. There were times when she would visit when Rose was intoxicated. She could walk but would be very disoriented and not know where she was and would get very sad and emotional and would cry and want to talk about family troubles. On one occasion, Rose said she thought her brother Larry had just passed away when this event had occurred much earlier in time. Kamana felt this was a symptom of either her dementia or drinking.

Kamana said Rose regularly had wine or beer in her house and that once and awhile she purchased some beer for Rose but stopped when she realized her drinking was worsening. This evidence was not challenged in cross-examination. [ 45 ] Charlotta testified that her mother was heavily addicted to alcohol in May 2010 to October 2012 when she slowed down somewhat but her use was then still heavy. Charlotta said her mom both drank and drove including in the Spring of 2011. Charlotta testified that a doctor revoked her mother’s licence in May 2011 as she felt it was unsafe for her to drive. I believe the doctor was Dr.

Geizer. Exhibit 5, tab 24 contains a note that on some date Dr. Geizer made Charlotta tell her in Rose’s presence that Rose was drinking and driving and a statement that Charlotta did not wish to do this as she was scared of her mom - a somewhat constant theme in her evidence before me. It is unclear whether Dr. Geizer is the doctor who is said to have revoked Rose’s licence. Charlotta said it was not correct that her mother never had a drinking problem. Rose drank heavily and drove daily from May 2011 when her licence was said to have been revoked to August 2011.

On one occasion when they were fishing in Lillooet, Charlotta instructed Kamana to hide her keys so she would not drive. [ 46 ] However, Rosa would not agree her mother was an alcoholic but agreed she loved her wine. My assessment of Rosa’s evidence as to her mother’s abuse of alcohol was that she had little knowledge of Rose’s use while Charlotta was Rose’s attorney and appeared to downplay this condition as an ongoing challenge for anyone caring for her mother.

The evidence is that Rosa was simply not around much to make observations as to her mother’s condition from time to time during the period June 20, 2011 to December 25, 2012. [ 47 ] Dr. Pruves who saw Rose apparently on February 12, 2013 to assess her mental competence had this to say about her level of competence and drinking: Evaluation: It is my evaluation, after this lengthy interval, that this lady is mentally competent.

She is displaying some mild cognitive impairment, on the basis of the MOCA test, although probably scores a little lower than functions because of her previous mild stroke, and certainly would need help with evaluating complex written materials, but I think she does fine with concepts. Hopefully, getting a number on the MOCA can be useful in deciding if there is progressing cognitive impairment and in the future deciding about any medications such as anticholinesterase inhibitors. She does not qualify now with a normal MMS exam. I did review the geriatrician’s consultation from October 2011 in Squamish (a Dr.

Geizer) who commented that it would be important that she stop all alcohol when he law her and her daughter assures me that they have made these arrangements and that she would not have had a drink now since October 2012. It’s not really clear, as I don’t have the longitudinal information, as to how significant a factor that was in the past in any case. [ 48 ] The daughter she refers to is of course Rosa. [ 49 ] Kamana recalled going with her mom and grandmother to Mt. St. Joseph’s Hospital in March 2011 to seek help and advice in how to care for Rose and themselves as it was really stressful taking care of Rose.

On this occasion or possibly on a later December 2011 visit, they were wanting to do something about her drinking and driving and to obtain what she referred to as a dementia assessment. Rose was very disoriented and angry that she had been taken to the hospital in December 2011.

Kamana recalled her grandmother’s driving licence was revoked in one of these hospital visits. [ 50 ] On August 22, 2011, Rose was admitted to Vancouver General Hospital complaining of a possible sexual assault and later discharged the same day with a final diagnosis of two in my view very serious medical conditions (see Exhibit 5, tab 20). [ 51 ] On September 12, 2012 Dr. Hays provided a letter of support for the family caregivers of Rose as follows: I have been asked for a letter of support for the family caregivers of Rose Andrew.

Rose’s family have been championing her care needs for some time and have creatively organized her care between family members and some agency supports. This family are involved with caring for a disabled school aged child as well. This burden of care is remarkable and the family has accessed care from the Mt. Currie Community for many years. Currently this family’s burden of care is now affecting health and wellness of all of the family members who are providing the day to day care.

There are currently respite plans in place but not that can be accessed immediately. This family has also long term plans in place for Rose but the long term care facility placement is not imminent. There are no other options available at this time. It is of concern that hose involved in caring for Rose are exhausted and at their limit of managing care needs. They have resolved many of the care issues around finances and safety, but these continue to be challenging. It is hoped that Rose can remain in her community for the short term and be supported by the community programs.

This may require increased communication and collaboration by the community groups involved in caring for this elder. (See Exhibit 5, tab 30) [ 52 ] A similar letter was provided by Dr. Coward on April 2, 2014 - Rose’s general practitioner prior to Rosa taking over as her power of attorney as follows: I have provided care to Charlotta and to her mother, Rose Andrew. Charlotta used to come to appointments with Rose and it was clear to me that she was providing excellent supportive care to Rose and always had her best interests at heart.

It is very difficult providing care to someone with Rose’s problems and Charlotta appeared to go above and beyond the level of care and dedication that many daughters would provide in this situation. (Exhibit 5, tab 57) [ 53 ] Charlotta testified that when she started helping her mom out in and after January 2011, she was given a debit card by the NSCU to access Rose’s account on January 15. Rose also had a second card with a $40.00 limit. Charlotta used hers thereafter to buy groceries and clothing for her mother. She did not say she purchased all food Rose consumed in this way.

At some point the debit card with the $40.00 spending limit was given to Rosa so when in Vancouver by reason of her UBC studies she could buy food there for Rose. [ 54 ] In January 2011 Charlotta said her mother had no food in her house and appeared under-nourished. She was then seeing her daily. She cleaned her house with help from her spouse Lindsay Pascal. Rose then had an old incontinent dog which urinated on her floors and carpets which Lindsay removed or cleaned. [ 55 ] Lindsay testified that he had helped out with Rose as early as the summer of 2009.

He and Charlotta lived with Rose for a period of time but moved back to their own home in October 2009. [ 56 ] Considerable evidence was led at trial as to the state of the interpersonal relationships between Rose and her 3 children Rosa, Charlotta and Wayne both before and during the time Charlotta held her mother’s power of attorney and as well the relationships between some of Rose’s children. [ 57 ] Sadly the relationship between Rosa and Charlotta from Charlotta’s perspective was characterized by negativity. Rosa was older and better educated.

She had a full time job and no challenges with any of her children. Charlotta testified that she did not feel Rosa understood the effort required by her due to the ongoing requirements of her special needs daughter. Only her mother Rose helped her with this child. Charlotta felt that Rosa had been attacking her for a long time and was generally critical of her efforts. At trial she testified that she still felt harsh about Rosa and said “that it was for life now”. [ 58 ] Charlotta testified that she was often or always scared of her mother and did not want to do things that would make her angry.

She said her mother was capable of going into a screaming rage when in essence displeased with something. At times she would have outbursts for no reason. She screamed at Charlotta often and at others. Charlotta said as the youngest child, she had dealt with this behaviour all her life. She had seen her mom yell at Wayne. He did not confirm this but agreed in cross-examination he had once moved out of Rose’s home after December 2012 when he apparently spoke to her dog the wrong way and Rose told him to leave and he did.

Kamana observed Rose get angry with her son Wayne particularly when he would come to Rose’s place asking for money saying to him that he only came around when he wanted money. Rosa testified, and was really alone in doing so, that she had never observed her mother in screaming fits. Charlotta did not tell her mother about the motor vehicle accident I discuss below in August 2012 when her Nissan was totalled because she was scared of her. She said she was always scared of her mom and older sister Rosa.

Charlotta never saw her mom yell at Rosa and believed that this was because unlike her, Rosa could and would fight back due to her strength of character. Charlotta testified that at times she was overwhelmed with the demands of caregiving for her mother which effort adversely affected her own health. At times she was having massive stomach problems and having difficulty holding her food down and consulted her own general practitioner for advice on how to deal with these issues he reported to be due to stress. [ 59 ] This evidence is corroborated by Dr.

Hays (Exhibit 5, tab 30) above letter and certainly the evidence given by Anita Samuels, the registered physiotherapist who testified at trial concerning her knowledge of Charlotta and Rosa’s involvement with Rose during the 18 months Charlotta acted as power of attorney.

[ 60 ] As I understood Charlotta’s evidence in order to alleviate the constant stress she experienced in dealing with her mother, and with Rosa’s agreement, Rose stayed I believe at Cedarview Lodge in North Vancouver for approximately 8 days from June 4 to 12, 2012 on a temporary respite basis and was retrieved by Rosa at the end of the stay. This was the only respite break Charlotta had from her caregiving duties for Rose in the 18 months she acted as her power of attorney.

Charlotta booked a further 10 days of temporary respite care in November 2012 at Cedarview, however Rosa with whom she first consulted was not in agreement and instructed her to cancel the stay giving no reasons - so Charlotta did so and Rose never attended. This event occurred in about mid-October 2012. Charlotta said at the time Rosa was in “full attack mode” with her and that Rosa and Wayne ganged up on her and she gave up. Several days later she took her mom to a yard sale on October 20, 2012 - one of many and said they had fun together.

This was the last time she really interacted with Rose on a personal basis while her attorney. By the trial date, she said she saw her mom once and awhile usually accidentally but they didn’t speak. [ 61 ] Evidence was given by various witnesses as to the support Rose’s children provided for her during Charlotta’s tenure as her attorney June 20, 2011 to December 25, 2012. Rosa said in a general way she was quite involved with her mom from June 2011 on giving as an example inviting her to a Christmas dinner and in the summer of 2012 driving her to North Vancouver to visit a friend.

She said she visited her mom on a weekly basis. In 2012 she was working full time and in the Fall going every Saturday to UBC as part of her Master’s degree program which concluded in May 2013.

She agreed that after Charlotta became Rose’s attorney in June 2011, that Charlotta did care for her on a fairly regular basis, e.g. driving her to medical appointments, taking her to local community events, e.g. elders’ gatherings, taking her out to buy groceries and regularly taking her to a lot of yard or garage sales (something which on the evidence in this case was perhaps Rose’s preferred extra-curricular activity). [ 62 ] Charlotta’s evidence was that certainly from June 20, 2011 and indeed before and to about mid-October 2012 she saw Rose very regularly - and often.

She testified that her sister Rosa never called Rose or visited. Her spouse Lindsay Pascal was also regularly at Rose’s place in this period of time. Until she left to attend Capilano University in August 2012 and during her mother’s power of attorney period, Kamana saw her grandmother regularly - at times more so on weekdays - on a daily basis staying 3-4 hours each time. She denied that her aunt Rosa visited her grandmother Rose on a weekly basis. She said she didn’t see Rosa there a lot when she was there and recalled Rosa drove to Vancouver on weekends and on weekdays taught school full time.

She recalled her grandmother didn’t visit Rosa a lot notwithstanding Kamana attempting to encourage this. Rose stated that Rosa never visited her - why should she visit Rosa? She never saw Rosa or Wayne help with her grandmother’s firewood. [ 63 ] Wayne seemed to say in his rather vague testimony that he tried to see his mother quite often and would ride his bike to her places but then stopped as every time he did so - he got into an argument with Charlotta and was “spooked away” whatever that means. Once and awhile he recalled driving to her place but didn’t say when.

He acknowledged that prior to August 2012 he had driven her Nissan motor vehicle. Kamana was asked about Wayne’s involvement with Rose and she said from her observations - he came around when he wanted something. He would seek money from Rose or help with his six-year old daughter Roxanne including getting Rose to babysit her when he was haying or dealing with his horses. [ 64 ] One very telling piece of evidence concerning Rosa and Wayne’s help with Rose was given in evidence by Anita Samuels. She recalled being present at two care plan meetings one in May 2011 at the Mt.

Currie Health Centre with Charlotta and she believed both Rosa and Wayne as well as a long-term care case manager nurse, where Rose’s needs and those of Charlotta were discussed. Lindsay Pascal recalled Rosa and Wayne were not at the first meeting, only the second but that he had attended both. They were trying to get more help looking after grandma Rose as Charlotta and he were getting burned out looking after her as well as their severely disabled daughter. They had a plan which was discussed in at least one of these meetings - the second one.

It was that they would look after Rose on weekdays and someone else would volunteer to do so on weekends to give them a break. They had prepared a written

schedule I understood like a calendar with dates and passed it around at the meeting inviting those present to sign on to help. No one did. Anita Samuels seemed to recall this discussion occurred in a May 2011 meeting but clearly recalled Charlotta asking her siblings to help her care for Rose by providing times and dates but receiving nothing conclusive from either Rosa or Wayne in response. [ 65 ] On cross-examination, Mr.

Pascal disagreed with the general proposition that Rosa and Wayne were always willing to help out with their mother’s care. [ 66 ] The misappropriations and breaches of Charlotta’s duties as an attorney in this case are for the most part said to have occurred from late August 2012 onward. [ 67 ] I make the following findings of fact as at August 26, 2012: 1. Rose had been earlier diagnosed with two very serious medical conditions, regularly abused alcohol, was often tempestuous with her youngest daughter Charlotta and difficult to care for. 2.

Charlotta was afraid of Rose and fearful of how she would react to bad news. 3. Charlotta, her spouse Lindsay Paul and her daughters Psil and especially Kamana provided very regular care for Rose prior to and during Charlotta’s tenure as Rose’s attorney with very little help and support from Rosa or Wayne who prior to the commencement of Charlotta’s stint as attorney and likely afterwards were invited to help and declined. 4.

At the insistence of the NSCU and with Rose’s consent as early as in or about January 2011 - Charlotta was given access to Rose’s bank account and thereafter helped her mother with her financial affairs to the knowledge of her siblings and without any objection on their part. 5. In or about the first 6 months of 2011 - Rose’s financial affairs at the conclusion of Rosa’s term as her attorney were in a somewhat precarious state. 6.

During the approximately fifteen months from June 20, 2011 to September 13, 2012 there is no evidence or allegation that Charlotta in any way as Rose’s attorney mismanaged any aspect of her affairs or acted in any way that was contrary to Rose’s best interests.

7. Rose’s children and grandchildren were allowed to drive the Nissan Versa motor vehicle that she owned after 2008 when it was insured and “on the road”. 8. Having regard to her age, her need to attend medical appointments and community events Rose needed a motor vehicle or the use of a motor vehicle. 9. Rose’s licence to drive a motor vehicle was effectively removed on her own doctor’s request on or about May 1, 2011 by reason of a concern that Rose was then drinking and driving unsafely and at no time prior to August 26, 2012 was it reinstated so that Rose could lawfully drive any motor vehicle. 10.

Rose’s income was approximately $1,700 a month from all sources excluding potential rent for the suite in her home or trailer rentals of approximately $900 a month. It is unclear if such rents were being received in August 2012. 11. Charlotta’s annual income was social assistance being some $15,257 at July 24, 2012 (Exhibit 5, tab 28). In 2012 she received $9,677 for a Canada child tax benefit, National child benefit supplement and a child disability benefit (Exhibit 5, tab 53). It was not established at trial that this sum was in addition to the $15,257 amount.

Charlotta estimated her monthly income from May 2010 to October 2012 was $1,300 - 1,400 a month. [ 68 ] I turn now to the evidence relating to the claimant’s claims. [ 69 ] Rose owned a 2006 Nissan Versa which she drove until approximately August 2012 when having lost her licence earlier, Charlotta removed it so that Rose would not drive it without a valid licence and while drinking. [ 70 ] The Nissan had been driven by both Wayne and Kamana prior to this date including in the case of Kamana for her own purposes in 2010 when she lived with Rose.

Charlotta on occasion drove her mother Rose to places in this car with no objection from Rosa - according to Kamana. [ 71 ] Initially the Nissan was left parked in front of Rose’s place but moved to the front of Charlotta’s residence in about the Spring of 2012. She recalled it sat parked there for about four months uninsured. [ 72 ] Charlotta testified that after her mother’s licence was removed, which occurred after the May 2011 Dr.

Geiser visit (and said she had no precise date when this occurred), the Nissan remained insured until September 16, 2011 as her mother still drove it albeit with no licence and to Charlotta’s knowledge for a period of time. [ 73 ] After September 2011 Charlotta decided to reinsure the Nissan as she needed a vehicle to drive her mother around and wanted her mother to pay for the expenses of insurance and maintenance. [ 74 ] She said it was reinsured for 3-4 weeks prior to August 26, 2012 so she could use it to drive her mother around.

Her mother didn’t drive it in this short period of time however Charlotta then gave I believe her daughter Psil permission to drive it. She did not ask her mother for permission to allow her daughter to drive the Nissan in August 2012. [ 75 ] The only evidence I was given is that the daughter drove it once in August 2012 for a purpose in part beneficial to Rose. There is no evidence anyone other than Rose drove the Nissan in August 2012 for a purpose unrelated to Rose’s needs. [ 76 ] On August 26, 2012 Charlotta, her daughter and possibly others were in Lillooet.

Charlotta said her Van which she then owned was then on the road but that she was struggling with the maintenance costs. It needed a lot of work including brakes which she could not afford particularly when she wasn’t receiving help from family members. Charlotta testified that this 2009 Dodge Grand Caravan van was a gift from the Vancouver Foundation and was wheel chair accessible and she needed it for her special needs daughter. Mr.

Pascal testified that it had been used in part to transport Rose for various outings including attending yard sales, picnics, berry picking expeditions and going for rides, however, my impression of his evidence was that this occurred prior to August 2012. It was not clear to me that on August 26, 2012 her Van was in Lillooet as was the Nissan. [ 77 ] On August 26, 2012 with Charlotta’s permission, Psil was asked to drive the Nissan loaded with dried fish from Lillooet to Mt. Currie or to “haul fish home for Mom”. Not all this fish was for Rose.

She was involved in an accident and the Nissan was totalled. [ 78 ] Charlotta learned of this event later in the day from her daughter and the police. She didn’t tell her mother that the Nissan had been totalled as she was scared of her and how she would react.

In her direct evidence she then said, “I am always scared of her or Rosa.” [ 79 ] Charlotta made a claim to ICBC and admitted that a cheque from ICBC for $8,112 for the Nissan was deposited to her mother’s NSCU account on September 13, 2012 which account was then in overdraft of $952.12. [ 80 ] On September 13, 2012 Charlotta withdrew $5,500.00 from her mother’s account and used these funds to purchase a 2004 Chevrolet Aveo which was registered in her mother’s name but she was shown on the owner’s certificate of insurance to be the declared principal operator. On purchase, the Aveo had 122,000 km on the odometer.

This vehicle was insured effective September 30, 2012 and the monthly payments were debited to Rose’s NSCU account. She did not tell her mother she had made this purchase. [ 81 ] At the time the Aveo was acquired, a $600.00 payment was made on Rose’s MBNA credit card according to the NSCU bank statement (on September 13) and as well on the same date a Shaw and Telus account of some $130.00 were paid. There is also an unexplained debit of $952.12 for “payment for account balances” bringing Rose’s account balance on September 13, 2012 to an overdraft of $22.24 (see Exhibit 1, tab 9).

That is how the $8,112.00 from ICBC was spent. Thus where Charlotta admitted that it was probable she used part of the ICBC money to purchase insurance for the Aveo - this probability seems not to be borne out on the documentary evidence in this case. I prefer Charlotta’s evidence that the monthly premiums came directly out of her mother’s account.

[ 82 ] Charlotta testified variously that in September or October 2012 her Van was insured but down or off the road. It needed new tires and “massive maintenance” and she couldn’t afford to maintain it. When it had close to 100,000 km on the odometer - she parked it in September or October 2012 at the time the 2004 Aveo was acquired to be used for her mother. In cross-examination she said on October 19, 2012 she started to drive the Aveo as did her 2 daughters. Her mother did not drive it. Her spouse Mr.

Pascal did not then own a vehicle. [ 83 ] Charlotta testified that shortly after the Aveo was acquired on September 13, 2012 she paid using Rose’s MasterCard or NSCU debit card repair costs for it totalling some $2,277.56 in total for work done on 4 separate occasions by Black’s Hot Wheels in Pemberton between September 14 and 26, 2012 on the Aveo including replacement of the right front brakes. On the last of these service calls, the Aveo had some 128,890 km on the odometer according to the invoice (see Exhibit 1, tab 12).

Charlotta agreed that she had not discussed these repair costs with her mother before incurring them. [ 84 ] On cross-examination Charlotta agreed that she had never discussed with her mother that she should pay any of her Van expenses but said that her mother wanted to help her but that she didn’t know what to charge Rose for. It was unclear to me that the question and answer related to Van expenses or costs which Charlotta described to be massive which caused her to make a decision to take the Van off the road in September or October 2012. There is no evidence as to what these costs might have been.

Charlotta was not cross-examined on this point namely - her knowledge if she had any as to, for example, estimated costs to make her Van roadworthy to use to drive Rose around in the Fall of 2012. Nor was she clearly cross examined as to why she had not then gone to her mother Rose to ask for her help in paying these costs - whatever they might have been - to make her Van roadworthy.

She wasn’t asked as to why had she not done this before making the decision to acquire the Aveo? [ 85 ] Charlotta testified that the last time she really spent any time with her mother was on October 20, 2012 when she took her to a yard sale. It is not clear this was in the Aveo. Rosa testified that her mother was never in the Aveo. The only basis for such evidence would be what Rose told her. Thereafter Charlotta continued to possess this vehicle, but said she didn’t drive her mother around in it as she received her eviction notice on November 4, 2012 (Exhibit 6).

This eviction notice does not refer to a return of the Aveo. [ 86 ] On October 26, 2012 Charlotta using her authority as Rose’s attorney transferred the Aveo into her own name. It was then 8 years old and had some 132,000 km on the odometer (Exhibit 1, tab 16). She said on the transfer documentation it was a “gift” and in her cross-examination that she had gifted herself a car into her name but agreed Rose did not know about it.

Thus I cannot find that when she did this Charlotta acted with Rose’s consent. [ 87 ] Charlotta admitted that thereafter she used the Aveo to drive her disabled daughter about as she had no other functioning motor vehicle and couldn’t be stranded. She said she used it until September 2014 when it broke down and now sits at her place in Mt. Currie needing its rear end to be replaced. Charlotta said she was going to fix it and return it to her mother but clearly that had not occurred by the trial date.

She guessed it had 150,000 km on the odometer - another approximately 18,000 from what it had on the date October 26, 2012 when she transferred it into her own name. This is the only evidence I have as to the defendant’s use of this vehicle from October 26, 2012 to September 2014 - a period of approximately 2 years. [ 88 ] Charlotta received at least 3 demands to return the Aveo to Rose - the first from her mother dated December 5, 2012 above, the second from her solicitor Mr.

Bonny December 18, 2012 (Exhibit 5, tab 42) and later on February 25, 2013 a third letter from Rosa - then Rose’s attorney (Exhibit 1, tab 30). None of these has yet to be complied with. [ 89 ] Lastly I return to certain evidence Rosa gave at trial concerning the Nissan and Aveo vehicles. She understood the Nissan was acquired in 2033 with money Rose had received from a residential school’s claim settlement. I do not accept this as an accurate purchase date.

She had seen Charlotta driving this vehicle from time to time and knew that it had been used by Charlotta and her daughter to drive Rose around and said she was OK with this. She learned after August 26, 2012 that this vehicle had been totalled and the Aveo had been acquired in Rose’s name as a replacement for the Nissan and that it too was to be used to drive her mother, for example, to her various appointments.

She again was OK with Charlotta using her mother’s money to buy the Aveo if it was used for Rose but felt that while this could have occurred in September 2012 that it was not so used later. [ 90 ] On September 27, 2012 Charlotta according to Rose purchased an iPhone using Rose’s MasterCard and registered the same in her mother’s name. There is no evidence Rose ever authorized or requested this purchase or later consented to it. She testified that she had done so as she needed a phone to use for Rose, for example, advocating her needs and said that she used it for this purpose.

Her daughter Kamana testified that she had been with her mother when this cell phone was used by her mom for this purpose, namely, making arrangements for grandma Rose. Mr. Pascal gave similar evidence - that this cell phone was used daily to plan things for Rose. This iPhone at Rosa’s later request was returned by Charlotta to Rosa on February 25, 2013 when she hung it on the door of Rosa’s classroom in her school in Mt. Currie. The initial Telus account October 6, 2012 discloses that a 3-year contract was entered into at an initial monthly cost of $83.08.

Some of the Telus Mobility monthly accounts were paid via Rose’s NSCU account. Charlotta felt OK doing this when she was her mother’s attorney. For example on November 1, 2012, this account was debited with a $90.00 payment which appears on the November 16, 2012 Telus account (Exhibit 1, tab 18). [ 91 ] Charlotta testified that she used this cell phone 90% of the time to advocate for her mother and 10% of the time for her disabled daughter. Her mother never used this cell phone. Charlotta used it daily fielding some calls from her mother.

She testified that her mother called her as much as 30 times a day seven days a week up to October 2012. She was not asked if all these calls were made by Rose to the cell phone number or whether some were made to her home’s landline which she maintained the whole time she possessed this cell phone. Rose as well possessed a landline in her home throughout the same time. Mr. Pascal testified that after leaving Rose’s home in October 2009 when he and Charlotta moved back to their place, he had a pay as you go cell phone his sister gave for about 4 months.

He also agreed he had such a cell phone is 2012 but could not recall having one in 2011. Charlotta agreed she used the cell phone up to February 25, 2013 when she returned it to Rosa and that she did not then or later pay the outstanding Telus Mobility bill. Her daughters never used this telephone. [ 92 ] After October 2012 Charlotta testified that 50% of the use of the cell phone was for her mother and gave as an example her brother and sister calling her on it approximately three times a week. It was not suggested to her in cross-examination that some or all of

these calls might have been placed on her landline. Charlotta said she had no contact with her mother after October 20, 2012. [ 93 ] There was no evidence as to who used the cell phone after it was returned to Rosa. As at July 15, 2013 the Telus account of $1,194.96 for this cell phone was still outstanding and in collections (see Exhibit 1, tab 37). [ 94 ] Charlotta testified that she was certain she had made some of the payments on the iPhone account but could not recall how she had done it. There are only four payments made on the iPhone account in the period October 6, 2012 to February 6, 2013.

The first was $90.00 on the November 6, 2012 invoice and the NSCU account for Rose discloses this as a debit on November 1, 2012 and hence this first payment was not made by Charlotta. Charlotta was pretty sure she had paid $180.00 on the December 6, 2012 account (Exhibit 1, tab 21) and the $96.26 payment on the January 6, 2013 account to keep the phone alive (Exhibit 1, tab 26) and said she had paid $180.00 out of her own funds on the February 6, 2013 account (Exhibit 1, tab 27). these payments total some $456.26. [ 95 ] The amount claimed by the claimant in her Notice of Claim for this cell phone is $684.61.

The claim is advanced on the basis that this purchase was both unauthorized and unnecessary as both Rose and Charlotta had landlines and at all material times could have communicated with one another in this fashion. A threshold question on this issue is: Was it properly within Charlotta’s authority as an attorney to enter into this cell phone contract when she did as a necessary and required expense involved in the care of her mother? [ 96 ] Rosa also testified that she learned in the Fall of 2012 that Charlotta had been using her mother’s debit card to pay for fuel in the amount of $343.00.

She agreed that it was OK for Charlotta to drive their mother around in the Nissan and in Charlotta’s Van but suggested if the transport was to a medical appointment, for example at the Mt. Currie Health Centre - this cost was defrayed by the Band. She believed if the transport was, for example, to a yard sale - both her mother and Charlotta should pay their fair share of this cost.

She agreed the Aveo could have been used to get her mother around in September 2012 but not afterwards. [ 97 ] The claimant offers as proof of these gas expenses a statement for Rose’s NSCU account from October 17 - November 14, 2012 with a handwritten entry “Fuel $343.00” (Exhibit 1, tab 19). Charlotta was shown this document in cross-examination and did not admit that any amounts shown were for fuel she had purchased. No account entries on this document clearly state they are for fuel.

Counsel then indicated during her cross-examination that Exhibit 1 at tabs 9 and 15 were as I understood it part of the claim for fuel. Tab 9 is a NSCU bank statement for the period August 16, 2012 to September 15, 2012. A number of purchases are highlighted thereon, for example: “19 Aug Purchase: LILWAT GAS STATION MOUNT CURRI BCCD# 033986 $25.00” Two later entries on September 2 and 12 are for ATM withdrawals at this station of $121.50 and $61.50 noted on their face “purchases”.

If all 6 Lillooet Gas Station entries are added together on the tab 9 NSCU statement - the total is $294.28 and deducting the 2 ATM withdrawals one is left with $111.28 of potential gas purchases. The NSCU statement at tab 15 for the period September 16 to October 15, 2012 shows 3 purchases at this station totalling $85.16. None of the purchases on either statement state they are for gas. Adding $85.16 to $111.28, one gets $196.44 not $343.00. Even if the 2 ATM withdrawals were not deleted the total gas station charges are $374.44 - not $343.00.

Counterclaim [ 98 ] Charlotta has advanced a counterclaim initially on her March 8, 2014 reply for (1) house and yard maintenance, (2) prepared meals, and (3) vehicle expense in the amount of $19,186.00 and later at trial amended it to $12,749.37 as per Exhibit 7 as follows: $ 216.00 - snow shovelling $ 432.00 - grass cutting $ 900.00 - firewood $ 288.00 - chop & stack wood $ 3,060.00 - keep fire going 24/7 for 6 months $ 5,940.00 - meal preparation $ 901.97 - insurance $ 511.40 - vehicle maintenance $ 500.00 - Mileage $12,749.37 [ 99 ] I will deal with the evidence as to claim (1) first.

This claim is supported only by various handwritten summaries prepared by Charlotta and invoices all directed to the claimant on various dates found at Exhibit 5, tabs 7, 12, 21, 22, 27, 36, 39 and 40 as well as Exhibits 7, 8 and 9. On March 18, 2015 - the 2 nd day of the trial - I ordered Charlotta to prepare and file a full and complete accounting of all claims she was advancing in her counterclaim including the manner in which she calculated each claim and with supporting invoices and documents. She later did so on June 8, 2015 and I understood Exhibits 7-9 were the result of this effort.

For the most part all invoices submitted were signed by both Charlotta and Mr. Pascal whom Carlotta said did most of the work. The work on the first claim totals $4,896.00 and is supported by 4 invoices, the first Numbered 593625 dated April 30, 2011 relating to snow shovelling at Rose’s home for 2 seasons - April 30, 2011 and April 30, 2012 each season’s work being charged at $216.00 for a total of $432.00 on the face of the invoice. Nonetheless at trial, her claim for compensation only relates to the 2012 season at which time she was Rose’s attorney (Exhibit 7, page 2).

No claim is advanced for the 2011 season work preceding her appointment as Rose’s attorney. [ 100 ] The second invoice No. 593626 dated October 26, 2012 relates to cutting grass at Rose’s residence for 2 seasons ending I assume September 2011 and September 2012 each charged at $216.00 for a total of $432.00. Here she seeks compensation for both

periods - both within her term as Rose’s attorney. [101] The third invoice No. 593621 dated September 8, 16, 30, October 6, 8, 2011 relates to 6 loads of wood chopped and supplied toRose’s home in the above period for a total compensation claim of $1188.00.

This work was done while Charlotta was Rose’s attorney. [102] The fourth invoice No. 593624 is dated April 30, 2012 totalling $3,060.00 and relates to labour including keeping Rose’s woodfire burning each day from November 1, 2011 to April 30, 2012 - again while Charlotta was Rose’s attorney. [103] Thus this total claim for compensation is for work done all during Charlotta’s term as Rose’s attorney. [104] Charlotta said all facts in the various invoices she prepared were true and admitted that she had not provided any of theseinvoices to her mother.

She had just filed them in court as she knew this issue was coming up. [105] The second claim for labour and delivery of prepared meals, 3 a day x 7 days a week for 22 months, in the total amount of$5940.00 is supported by Exhibit 7, page 10 and Invoice No. 593617 in this amount dated December 1, 2012 signed only by LindsayPascal and covers 2 periods (

a) January 2, 2011 - January 1, 2012 and (

b) January 1, 2012 to October 20, 2012 or some approximately 20months. The total monthly claim is thus $270.00 a month and for the 5.67 months from January 1, 2011 to June 20, 2011 beforeCharlotta became Rose’s attorney would be some $1530.40. There is no line item for the cost of food in this invoice. Charlotta testifiedthat they fed Rose with their own food. There is no evidence that some or all of this cost for groceries was passed on to Rose with someform of debit to her NSCU account or charge on her MasterCard. Mr. Pascal said that in Rose’s lunches he included produce they hadgrown obviously in season.

I would doubt this was a source of the staples in Rose’s meals prior to June 20, 2011 when Charlotta becameher attorney. Charlotta agreed she had never told her mom that she would charge her for these meals. [106] I should mention that Mr.

Pascal and Kamana corroborated that these meals were prepared and this point was not disputed incounsel’s cross-examination of any witness. [107] The third claim relates to vehicle expenses for Charlotta’s 2009 Dodge Caravan Van insurance, maintenance and mileagetotalling some $1,913.37 and is supported by Exhibit 7, pages 12-13 and Invoice No. 593606 dated December 1, 2012 signed only byCharlotta in the total amount of $3826.40 which amount by virtue of the pages 12-13 calculations in Exhibit 1 was really halved at trialfor claim purposes.

This was because in the almost 15-month period of time she used her Van for both Rose and her disabled daughter. This vehicle expense according to the invoice is all for a time according to the invoice #593606 namely August 1, 2011 to October 20,2012 when Charlotta was Rose’s attorney. Charlotta agreed she used this vehicle both for her special needs daughter and mother andfurther that she had never discussed with her mother payment of any of these expenses but said nonetheless Rose wanted to help her. Both Kamana and Mr. Pascal testified that the Van was used to transport Rose.

The repair costs of $1022.91 are supported with invoicesfrom Destination Chrysler in North Vancouver dated June 24, 2011 and December 14, 2011. Charlotta’s evidence was that all of thefacts on Exhibit 7, pages 12-22 were true relating to this third claim. No one had given her any money to assist with the costs of herVan. Her insurance amount of $901.97 was based on what her mother paid for insurance on the Nissan (see Exhibit 5, tab 6) and shesaid she had about the same monthly payment. No particulars were provided of her $500.00 mileage claim, for example a trip log but theamount is modest - some $33.00 a month.

Contrary to the above invoice - one Destination Chrysler invoice is for an earlier date - June24, 2012 but within the period in which Charlotta was Rose’s attorney. There are no documents filed by either claimant or defendant, forexample a credit card statement or NSCU statement that show Rose paid any of the amounts claimed. Charlotta was not cross-examined,e.g. suggesting she had not paid the 2 repair invoices or insured her Van as per this claim. I conclude she paid for the repairs andinsurance.

The mileage claim is one for compensation under s. 24(1) of the POA and is distinguishable from the above 2 amounts whichare advanced essentially as expenses incurred for which Charlotta seeks reimbursement as to one half. The Law [108] Counsel for the claimant provided the court with 5 authorities all of which I have considered as follows: 1. BC Public Guardian and Trustee v. Egli, 2004 BCSA 529 2. Ast v. Mikolas, 2010 BCSC 127 3. Modonese v. Delac Estate, 2011 BCSC 82 4. Sommerville v. Sommerville, 2014 BCSC 1848 5. Geffen v.

Goodman Estate, (SCC), 1991 2 SCR 353 [109] In addition I have considered the various provisions of the Power of Attorney Act 1996 RSBC c.370 and as extensively amendedSeptember 1, 2011 (the “POA”). [110] The version of this legislation that existed prior to September 1, 2011 did not set out any content to for example as the duties andliabilities of an attorney. After September 1, 2011 extensive amendments were made that did so.

As pointed out by Fisher J. inSommerville prior to the 2011 Act, one of the duties of an attorney was to use the power only for the benefit of the donor consistent withthe characterization of the relationship as a fiduciary one (see para. 38). She then said that the new Act in s. 19 codified the duties of afiduciary to act honestly and in good faith, to exercise reasonable care and to account to the donor within the authority granted in thepower of attorney (para. 39).

Finally in para. 45 of her reasons she said this: 45 In my view, s. 19 does not alter the attorney’s common law duty to act only for the benefit of the donor. However, the bestinterests of the donor are not to be considered in a vacuum. His “current wishes, known beliefs and values” may permit the attorney tocontinue to provide for a spouse or family member if there is clear and convincing evidence of an intention to do so, and it can be donewithout compromising the donor’s interests.

[111] Charlotta’s power of attorney is dated June 20, 2011. Thus until September 1, 2011 the old Act such as it was governed her asdid the common law principles. I will assume that those common law principles were in fact codified in the new Act effective September1, 2011. In Egli Garson J. said this inn para 82: 82 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 onadvantage (Chapman).

The attorney can only use the power for his or her own benefit when it is done with the full knowledge andconsent of the donor (Robertson, Mental Disability and the Law in Canada at 183). I am not aware of any authority that detracts fromthis principle in circumstances where the benefit is conferred on family members. [112] Egli was followed in Ast.

In Ast Cullen J. discussed what constituted a breach of fiduciary duty in para 123 as follows: 123 As to what constitutes a breach of fiduciary duty, it is clear that a fiduciary is subject to a broad duty to act in good faith and in thebest interests of the person over whom she exercises discretion or control, that she must fully disclose all information relevant to the trustand confidence placed in her, and that she must not reap a personal benefit or use the property or goods that she has discretion or power over. See Capobianco v. Paige (2007), (ON SC), 36 B.L.R. (4th) 229 (Ont. S.C.J.), Keech v.

Sanford (1726), 25 E.R.223, and Bray v. Ford, [1896] A.C. 44. [113] The relevant

section of the new Power of Attorney Act RSBC 1996 c. 370 are as follows: 19

(1) An attorney must (

a) act honestly and in good faith, (

b) exercise the care, diligence and skill of a reasonably prudent person, (

c) act within the authority given in the enduring power of attorney and under any enactment, and (

d) keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.

(2) When managing and making decisions about the adult's financial affairs, an attorney must act in the adult's best interests, taking intoaccount the adult's current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney.

(3) An attorney must do all of the following: (

a) to the extent reasonable, give priority when managing the adult's financial affairs to meeting the personal care and health care needsof the adult; (

b) unless the enduring power of attorney states otherwise, invest the adult's property only in accordance with the Trustee Act; (

c) to the extent reasonable, foster the independence of the adult and encourage the adult's involvement in any decision-making thataffects the adult; (

d) not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult's will, except if the disposition isnecessary to comply with the attorney's duties; (

e) to the extent reasonable, keep the adult's personal effects at the disposal of the adult.

(4) An attorney must keep the adult's property separate from his or her own property.

(5) Unless the enduring power of attorney states otherwise, subsection (4) does not apply to property that (

a) is jointly owned by the adult and the attorney as joint tenants or otherwise, or (

b) has been substituted for, or derived from, property described in paragraph (a). Attorney's powers 20

(1) An attorney may make a gift or loan, or charitable gift, from the adult's property if the enduring power of attorney permits theattorney to do so or if (

a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult'sdependants, and to satisfy the adult's other legal obligations, if any, (

b) the adult, when capable, made gifts or loans, or charitable gifts, of that nature, and (

c) the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value.

(2) An attorney may receive a gift or loan under subsection (1) if the enduring power of attorney permits.

(3) Permissions under subsections (1) and (2) (

a) must be express, and (

b) may be in relation to a specific gift or loan, or charitable gift, or to gifts or loans, or charitable gifts, generally.

(4) An attorney may retain the services of a qualified person to assist the attorney in doing anything the adult has authorized the attorney to do.

(5) An attorney may, in an instrument other than a will, (

a) change a beneficiary designation made by the adult, if the court authorizes the change, or (

b) create a new beneficiary designation, if the designation is made in (

i) an instrument that is renewing, replacing or converting a similar instrument made by the adult, while capable, and the newly designated beneficiary is the same beneficiary that was designated in the similar instrument, or (ii) a new instrument that is not renewing, replacing or converting a similar instrument made by the adult, while capable, and the newly designated beneficiary is the adult's estate.

(6) Subject to subsection (7), a person having custody or control of property belonging to an adult must deliver the property promptly, on request of the adult's attorney, to the attorney.

(7) A person must not deliver, to an adult's attorney, a will made by the adult if the adult has given instructions to a lawyer or notary public who holds the adult's will, or the will contains instructions, prohibiting delivery of the will to the attorney. Liability of attorney 22 An attorney who acts in the course of the attorney's duties is not liable for any loss or damage to the adult's financial affairs if the attorney complies with (

a) the duties of the attorney as set out in

section 19 and the enduring power of attorney, (

b) any directions of the court given under section 36 (1) (a), and (

c) any other duty that may be imposed by law. Payment and expenses of attorney 24

(1) An attorney must not be compensated for acting as an adult's attorney unless the enduring power of attorney expressly authorizes the compensation and sets the amount or rate.

(2) An attorney may be reimbursed from an adult's property for reasonable expenses properly incurred in acting as the adult's attorney. Changing or revoking enduring powers of attorney 28

(1) Subject to any limits or conditions in the enduring power of attorney, and unless the adult is incapable of understanding the nature and consequences of doing so, an adult who has made an enduring power of attorney may change or revoke the enduring power of attorney.

(2) After changing or revoking an enduring power of attorney, the adult must give written notice to each attorney.

(3) A change must be in writing and must be signed by the adult in the same manner as an enduring power of attorney under

section 16.

(4) A change or revocation is effective when notice is given under subsection (2) or on a later date stated in the notice.

(5) A change to an enduring power of attorney is binding on an attorney who receives notice of the change, unless the attorney resigns under

section 25. When authority of attorney is suspended or ends 29

(1) The authority of an attorney is suspended in any circumstances set out in an enduring power of attorney, for as long as those circumstances continue.

(2) The authority of an attorney ends (

a) if the enduring power of attorney is terminated, (

b) if the provisions of the enduring power of attorney that give authority to the attorney are revoked,

(7) Anything lawfully done by an attorney on behalf of the adult, including making an agreement, remains binding on the adult after the authority of the attorney ends. Disclosing information

33 An attorney must not disclose information or records obtained in the exercise of his or her authority except to the extent necessary to (

a) perform his or her duties, (

b) make a report to the Public Guardian and Trustee under section 34 (2) or comply with a requirement of the Public Guardian and Trustee, or (

c) make an application to, or comply with an order of, the court. [ 114 ] Hence under s.33 of the new Act , Charlotta while Rose’s attorney had a lawful right not to disclose confidential financial information concerning Rose to anyone - including Rosa. Position of the Parties on the Claims [ 115 ] I have reviewed all written submissions made by both parties. I do not intend to fully set them out in what follows but will attempt to summarize their main points.

I have not considered in this decision any facts or statements in either party’s written submissions not given at the trial and not therefore evidence in this case. I would also note that my order as to typewritten submissions was that they were to be in the case of the claimant to be 15 pages long and double spaced. The claimant did not comply with this direction.

The Claimant [ 116 ] Charlotta breached the fiduciary duties she owned to her mother in that she did not keep Rose’s property separate from her own using Rose’s car and cell phone regularly and without clear knowledge or direction from Rose (s. 19 (4) POA ). [ 117 ] The purchase of the Aveo and later repairs to it were not known to Rose, not discussed with her and of no benefit to her. [ 118 ] The cell phone was used by Charlotta beyond the scope of benefit to Rose. [ 119 ] Charlotta’s power of attorney was said to have been revoked on two dates, namely, December 12, 2012 (Exhibit 1, tab 22) or pursuant to Rose’s handwritten revocation of December 5, 2012 (Exhibit 5, tab 46).

As I have said, this appears to be one of Charlotta’s documents however there is no evidence as to when she received it. [ 120 ] The evidence of Charlotta was unreliable, conflicted and not credible. [ 121 ] Charlotta mixed her personal debts in with Rose’s contrary to s. 19 of the POA . [ 122 ] Neither Charlotta nor Mr. Pascal had Rose’s authorization to be compensated for any work they did for her while her attorney in Charlotta’s case. The expenses Charlotta incurred are not reasonable expenses including in part because Rose did not authorize them.

Pursuant to s. 24 of the POA Charlotta should not be compensated for any expenses she incurred. [ 123 ] Charlotta exercised undue influence on Rose by means of her domineering relationship over Rose including efforts to isolate Wayne from his mother by calling the Ministry and SPCA. [ 124 ] At page 15 of the claimant’s written submission Ms.

Rauch, counsel for the claimant, deals with the evidence as to Rose’s competence to grant powers of attorney as follows: There is no evidence in this case that Rose did not possess the capacity to grant Power of Attorney initially to Rosa, then unbeknownst to Rosa to Charlotta, and then to Wayne and Rosa, and finally to Rosa alone. Indeed, the psychiatric and other evidence suggests that, despite the stroke and mild dementia, Rose is fully aware of her surroundings, her home, her car, her phone and her family .

Despite this, Charlotta, rather than promote Rose’s ongoing independence, became overburdened by the task of taking care of her as well as her own special needs daughter, and rather than seek help from Wayne or Rosa, or from the Band resources, she took steps to remove Rose’s independence by not telling her that she was concerned about her continuing to drive due to her using alcohol, by not telling her that they hid the keys to the Nissan, by not telling her that her daughter was driving the Nissan, by not telling her of the accident, the ICBC claim, the purchase of the Aveo, the fact that she stopped driving her own van, that she continued to use the cell phone registered to Rose for her own personal use, and that, after repeated attempts of Rosa and Rose to have Charlotta simple return the property to Rose, there was no alternative than to file a claim in court. (My own emphasis added.) [ 125 ] Throughout the claimant’s written argument there are assertions that Charlotta failed to discuss various matters with her mother and seek her consent before acting.

For example, purchasing the Chevrolet Aveo motor vehicle and getting it repaired. Implicit in these assertions together with the above medical evidence, I think is the proposition that during the tenure of Charlotta as Rose’s power of attorney that Rose was capable of having such discussions and giving consent. There is no evidence that Rose’s state of health deteriorated to such an extent that by March 2015 she was not competent or unable to testify. I have referred to her will say statement above. Yet she was not called as a witness notwithstanding she is the named claimant.

In my view based on the evidence I have been given in this case about her, she ought to have been called certainly where she alleges her youngest daughter acted over her in a manner legally characterized as with undue influence - an allegation not pleaded in Rose’s Notice of Claim. Yet I am asked I assume to accept hearsay evidence (as true) for example at page 3 of the claimant’s written argument as follows: Rosa stopped in to see Rose one day and she was very upset because Charlotta had been yelling at her. [ 126 ] This is but one example.

It goes to the heart of an undue influence allegation, a child allegedly mistreating an aged parent (see

Modonese

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