Prevatt v Prevatt, 2024 ABKB 31

Court of King’s Bench of Alberta Citation: Prevatt v Prevatt, 2024 ABKB 31 Date: 20240117 Docket: 2201 03280 Registry: Calgary Between: FREDERICK PREVATT Applicant - and - SUZANNE PREVATT, personally and as Attorney for IVY PREVATT AKA IVY PHYLLIS PREVATT AKA IVY PHYLLIS SPRINGER AKA IVY PHYLLIS ABBOTT Respondent Docket: SES01 128466 Registry: Calgary Between: IVY PREVATT AKA IVY PHYLLIS PREVATT AKA IVY PHYLLIS SPRINGER AKA IVY PHYLLIS ABBOT Estate Name - and - FREDERICK PREVATT

Personal Representatives - and - FREDERICK PREVATT Applicant - and – SUZANNE PREVATT Respondent - and – FREDERICK PREVATT, SUZANNE PREVATT AND CHARLENE PREVATT Residuary Beneficiaries _______________________________________________________ Reasons for Decision of the Honourable Justice D. J. Reed _______________________________________________________ Introduction [ 1 ] This is a contested estates matter. The estate in issue is the estate of the deceased, Ivy Prevatt, aka Ivy Phyllis Prevatt, aka Ivy Phyllis Springer, aka Ivy Phyllis Abbott (“ Ivy ” and “ Estate ”). Ivy passed away on June 17, 2018.

Prior to her death, she had been declared incapacitated in November of 2017 by reason of dementia. [ 2 ] There are three residual beneficiaries, Frederick Prevatt (“ Frederick ”). Charlene Prevatt (“ Charlene ”), and Suzanne Prevatt (“ Suzanne ”). All are the adult children of Ivy. [ 3 ] Frederick is the personal representative, and the named Executor of Ivy’s estate pursuant to her will dated September 14, 2010 (“ Will ”), which is the subject of an order of this court granting probate on August 1, 2019.

The Will declares that the residue of her estate be divided equally between Frederick, Charlene and Suzanne. [ 4 ] Ivy’s estate consists of real and personal property and other assets in Canada and Trinidad and Tobago. The Canadian assets

have largely been dealt with and accounted for. The assets in Trinidad and Tobago have not. Prior to Ivy’s death, Frederick was named as Ivy’s Attorney over her assets in Trinidad and Tobago in an April 16, 2007 Power of Attorney granted in his favour by Ivy (“ T&T POA ”). [ 5 ] There are four applications before the court for determination.

They are briefly summarized below. [ 6 ] Two applications by Suzanne in Action SES01 128466 against Frederick as personal representative of the Estate: one filed December 15, 2021 and another filed May 2, 2022, seeking a complete copy of the Estate documents, on various grounds, in the within Action, and other relief, which I will describe below. In essence, these applications seek very similar (if not the same) relief. In the hearing, Suzanne’s counsel referred only to the May 2, 2022 application. The scope of the relief sought from the court had been greatly narrowed by the time the applications were heard.

I refer to these applications as the “ Suzanne Applications ”. [ 7 ] Two applications by Frederick against Suzanne: an application pursuant to

section 10 of the Powers of Attorney Act , RSA 2000, c P-20 (“ PAA ”), commenced by way of Originating Application in Action No. 2201-03280. This application seeks to have Suzanne, as attorney of Ivy under two instruments, a power of attorney granted by Ivy in favour of Suzanne dated April 24, 2006 (“ POA ”); and a springing/enduring power of attorney granted by Ivy in favour of Suzanne, dated September 14, 2010 (“ EPA ”), to pass accounts related to that role pursuant to the provisions of the PAA .

The other is an application filed in Action SES01 128466 in response to Suzanne’s application of December 15, 2021 for advice and directions from this court. This application originally sought a number of grounds of direction and relief but has been reduced through the course of the litigation to two items, being the delivery of Ivy’s ashes to Frederick as her personal representative, and the extent and delivery of certain jewellery of Ivy’s in Suzanne’s possession to Frederick as her personal representative, as an asset of the Estate.

I refer to these applications as the “ Frederick Applications ”. [ 8 ] Charlene has not participated in the proceedings, nor filed any evidence. [ 9 ] The above applications were ordered, by consent to proceed together, and to be heard together, by an Order issued by Mr. Justice C. Jones of this court on March 24, 2022, filed June 14, 2022 (“ Jones Order ”). [ 10 ] I will address the Suzanne Applications, and then the Frederick Applications. Rather than proceed with a compendious background

summary of the evidence, I refer to the relevant evidence and make the necessary factual findings in the course of my assessment of these applications. I do so since the matter has been heavily litigated. Of the hundreds, if not thousands, of pages of affidavit evidence, exhibits transcripts, and undertakings Frederick and Charlene have generated in this matter since 2021, only portions of that evidence is relevant to the remaining matters requiring a decision.

For the purposes of preparing these reasons, and coming to the conclusions I have, I have reviewed and considered all admissible evidence before the court. The Suzanne Applications [ 11 ] The Application filed December 15, 2021 by Suzanne is styled as an application “for a Complete Copy of the Estate Documents”. In addition to a request for documentation, the good faith of Frederick is called into question. It complains that Frederick had not provided an accounting to Suzanne.

It seeks, among other things, a complete copy of the Estate documents; amendment of the Estate documents to include accounts in Trinidad and Tobago, if not already included; a full accounting from Frederick as Executor, on an ongoing basis; an inventory, and other relief. [ 12 ] The second application that Suzanne filed was on May 2, 2022, less than six months after the filing of the first application. That application sets out a list of issues lettered (a)-(

n) at paragraph 3 over a myriad of subjects, and relief is sought in paragraph 5 lettered (a)-(s). [ 13 ] However, in the hearing, Suzanne’s counsel agreed that the issues remaining for determination on the Suzanne Applications are the following items from the May 2, 2022 application (lettering is mine and not concorded to the Suzanne Applications): a. An Order or direction that Suzanne retain authority over Ivy’s ashes, or in the alternative that conditions on the release of the ashes to Frederick be granted in order to make sure Ivy’s wishes are respected and all beneficiaries treated equally; b.

Order or direction that Suzanne shall distribute Ivy’s jewellery to the parties Ivy intended via her wishes prior to passing or in the alternative an Order requiring Frederick to do the same; c. An Order that the $150,000.00 that the Deceased loaned Frederick be repaid by him and come out of his share of the proceeds of the Estate (this was resolved/admitted prior to the hearing but deserves mention in these reasons); d. Direction that all Estate documents be updated to accurately reflect the value and debts of the Estate and timelines in order to comply with such requirements; e.

Direction as to how Ivy’s assets in Trinidad and Tobago are to be addressed and dealt with in accordance with the Canadian estate; f. Direction as to ongoing disclosure and accounting and timelines of the estate by Frederick to Suzanne; g. Direction as to the $10,000 loan provided by Suzanne to Ivy is to be repaid. [ 14 ] Also, there were additional issues raised by Suzanne in her filed written brief of argument and in oral argument which were not sought in Suzanne’s filed application documents. Those issues are: h.

An $80,000 loan allegedly made from Suzanne to Frederick, which Suzanne wants paid from Frederick’s portion of the Estate; i. A request for reimbursement from the Estate in the amount of $4,460.41 for credit card interest Suzanne says was incurred in

relation to funeral expenses for Ivy; j. Whether there are assets of the Estate in Switzerland; k. Whether or not Frederick will “remain” the personal representative of the Estate; l. That Frederick provide an Estate accounting quarterly (which was modified in oral argument to every 2 years in accordance with the Surrogate Rules ); m. That Frederick cause the Estate to hire a mid-tier Canadian professional accounting firm, at the Estate’s expense, going forward; n. A request for a non-disparagement agreement amongst Frederick, Suzanne and Charlene; and o.

A request in relation to handling of family photo albums. [ 15 ] I will call these additional requests the “ Additional Relief ”.

Preliminary Issue – Without Prejudice Disclosures in Suzanne’s Brief [ 16 ] In Frederick’s written argument and in oral argument, Frederick’s counsel raised the concern that Suzanne’s counsel, in written argument, had referenced several without prejudice discussions and issues not properly before the court on the filed applications. [ 17 ] In oral argument, Suzanne’s counsel seemed to want to convert the hearing into a judicial dispute resolution rather than argue the merits of the applications before the court.

I informed counsel in argument that in the absence of consent from Frederick, the matter would proceed as scheduled, and that without prejudice discussions, positions, and related matters should not be referenced further in oral argument. [ 18 ] Settlement privilege belongs to both parties and cannot be unilaterally waived or overridden by either party.

No exceptions apply to make the impugned content otherwise admissible: Sable Offshore Energy Inc v Ameron International Corp , 2013 SCC 37 at para 2 ; Bellatrix Exploration Ltd v Penn West Petroleum Ltd , 2013 ABCA 10 at para. 26 and 29 . [ 19 ] I agree with Frederick’s counsel that there are matters in the filed argument of Suzanne that appear to be of a without prejudice nature. Frederick has not waived the privilege, and as such I have not had any reference to that content in coming to my decision.

In particular, the affected paragraphs are paragraphs 2, 35, 37, 38, 39, and 42 of the Brief of Argument filed by Suzanne on November 27, 2023. The ‘Resolved’ Accounting Issues [ 20 ] In the Suzanne Applications, there are a number of items of relief sought relating to accounting and disclosure. There are also allegations of misconduct related to Frederick’s alleged handling of Ivy’s Estate contained in both applications. Those issues were not argued by Suzanne in her written argument nor in oral argument.

Instead, Suzanne’s submission was that “it is [Suzanne’s] understanding that Frederick recognizes his responsibilities in this regard as the Personal Representative and these issues are largely resolved.” [ 21 ] Suzanne’s brief also indicates that “the parties appear able to cooperate and agree on the responsibilities of Frederick for a continued accounting of the Estate and any of Ivy’s worldwide properties and accounts”. [ 22 ] No misconduct on the part of Frederick was argued in the hearing to have been proven on the evidence before the court, and I was not asked to find any.

While there were clarifications in information made (as addressed in parts of these reasons), none of the issues that had been raised by Suzanne in the Suzanne Applications relating to any misconduct on Frederick’s part seem to have any evidentiary foundation. [ 23 ] Suzanne pressed Frederick on all of the Estate’s finances. At Suzanne’s requests, this information was “repackaged” by Frederick several times.

Based upon her own counsel’s submissions, Suzanne hired a third-party accountant to vet the accounting of the Estate to her satisfaction. [ 24 ] Suzanne’s counsel candidly admitted in the hearing of the applications that to date, there has been “nothing unsatisfactory” about the accounting that has been provided. (

a) and (

b) Ivy’s Ashes and Jewellery [ 25 ] I note at this stage, as Frederick’s counsel did at the hearing, that the items regarding ashes and jewelry are duplicative of the issues raised in the Frederick Applications, and I will address those issues there. (

c) The $150,000 Loan from Ivy to Frederick [ 26 ] This loan was not reported in the initial NC-7 “Inventory of Property and Debts” filed with the application for the grant of probate by Frederick on July 18, 2019. Frederick said he had understood this was a gift from Ivy during her lifetime. However, it was nonetheless reported as a loan in an NC-7 “Inventory of Property and Debts” by Frederick on February 5, 2020, after Suzanne raised the issue. This was prior to any of the extant applications being filed. [ 27 ] The initial reported amount was $200,000.00. Frederick’s evidence, gathered through the myriad cross examinations and

undertakings in these proceedings, is that he investigated and found that he could not locate any documents relating to the $200,000 that Ivy had provided to him during her lifetime. His evidence is that he had repaid $50,000.00 of this amount during her lifetime, and a bank draft to that effect was produced. However, his evidence is currently unclear as to whether he in fact was then again paid back the $50,000.00 by Ivy, and no documents have been produced to support that.

The $50,000.00 reduction is reflected in an updated NC-7 filed February 17, 2022. [ 28 ] I make no findings of fact on the reduction in amount as the evidentiary record is incomplete and this amount was included in the NC-7, and as of the date of the hearing was no longer part of the relief being sought by Suzanne. Frederick has reported the debt, and it is being treated as such by the Estate. (

d) and (

e) Updating Estate Documents and Trinidad and Tobago Assets [ 29 ] The main argument of Suzanne here is that the NC-7 in relation to the Estate has not, to date, listed any of the Estate’s assets in Trinidad and Tobago, nor has any of the Estate’s accounting listed these assets. In argument, Suzanne’s position was that given the fact that the estate was probated in 2019, matters should be more advanced than they are.

Suzanne also argued in oral argument that potential tax liabilities of the Canadian estate need to be identified, and that this would also be informed by understanding the scope and value of the Trinidad and Tobago components of the Estate. [ 30 ] These assets are agreed by the parties to be significant when compared to the Canadian component of the Estate. The parties seemed to agree in oral argument that the Trinidad and Tobago assets are complex.

Based upon Frederick’s evidence on some of his cross examinations, this part of the Estate consists of several interests in real property and also personal property, including bank accounts and shares in certain companies. The court was provided with an unfiled affidavit of Frederick from 2022 filed in the courts in Trinidad and Tobago that estimates the value of the assets there at just over $2,000,000.00 CAD. The total realized amount of the Canadian portion of the Estate is just below $1,000,000.00 CAD. Frederick’s evidence in these proceedings does support the assets listed in this document.

I have no evidence of values properly before me and make no finding in relation to the content or value of the Trinidad and Tobago assets of the Estate. [ 31 ] Frederick has retained local counsel in Trinidad and Tobago and taken steps to have the grant of probate issued by the Alberta court re-sealed by the courts there.

This appears to be at the early stages of working its way through the courts, and at the date of the hearing, no decision had yet been rendered by the courts of Trinidad and Tobago. [ 32 ] Suzanne has raised the issue of the passage of time from Ivy’s death and the status of matters in Trinidad and Tobago. Frederick’s response is that this was delayed by the COVID-19 pandemic, the speed at which the legal system operates in that jurisdiction, and these proceedings.

The reality is that matters are proceeding in that jurisdiction, and Frederick has acknowledged his obligations and intentions to comply with them. [ 33 ] Frederick submitted that the form NC-7 did not, at the time it was filed, require listing of Ivy’s assets in Trinidad and Tobago pursuant to the Surrogate Rules , A.R. 130/95 , in particular Rules 13(1) - (3) . This is correct.

However, Frederick’s counsel admitted that the forms were updated in June 2022, during the pendency of these proceedings, and that the new form that came into effect at that time does in fact require listing of all assets and real property both within Alberta and outside Alberta. [ 34 ] Frederick’s counsel agreed that a new form (GA- 2) would be completed and filed, and that this form would disclose the Trinidad and Tobago assets and real property with an estimated value.

Frederick’s counsel, in response to Suzanne’s arguments that this should have happened sooner, referenced the embargo on the parties preventing them from filing further documents prior to the hearing set out in the procedural orders. [ 35 ] Frederick also submitted, quite properly, that the courts of Trinidad and Tobago have jurisdiction over the property of Ivy located there, such that the ability of the Estate to properly assess the nature, extent, and value of that property will not be certain until the legal process plays out in that jurisdiction.

After this, it will require updated accounting to reflect the status of those proceedings and the impact it has on the inventory of the Estate and estimated value. Frederick seems to take no objection to the fact that the Estate includes those assets (subject to agreement by the courts of Trinidad and Tobago) and that their value, once realized, must be distributed in accordance with the terms of the Will pursuant to the laws of Alberta, as applicable. (

f) Direction as to Ongoing Disclosure and Accounting of the Estate [ 36 ] This relief sought by Suzanne morphed in oral argument. Initially Suzanne was asking for quarterly disclosure and accounting. However, in oral argument, Suzanne’s counsel agreed that accounting every 2 years as set out in the Estate Administration Act , SA 2014 c. E-12.5 (“ EAA ” ), s.32 and the Surrogate Rules , in particular Rules 97 and 98 would suffice. [ 37 ] While not in evidence, counsel agreed that the most recent updated accounts ending as of July 31, 2023 had been provided by Frederick to Suzanne.

As the parties noted in their argument, both oral and written, there was a difference noted in the calculation of the net value of the opening balance of the Estate between February 2022 (NC-7) and the accounting provided ending July 31, 2023 of $35,466.54, which was resolved through further explanation by Frederick to Suzanne of the difference, in a letter to counsel dated November 29, 2023.

While not in evidence, counsel for Suzanne acknowledged receipt of this letter and agreed with this statement. [ 38 ] Given Suzanne’s agreement with the default level of accounting and reporting in oral argument, I am not prepared to order (and would not have ordered in any event) that quarterly, or other additional accounting be required of Frederick. Compliance with the EAA and the Surrogate Rules is sufficient. [ 39 ] The default thus is that Rule 97(2) requires Frederick to provide an accounting on or before July 31, 2025 if the Estate administration is not complete.

Given that Frederick has undertaken to file an updated GA-2 regarding addition of the Trinidad and Tobago assets, I see no need to vary the default 2 year reporting period in the Surrogate Rules, and that continues to apply.

(

g) The Alleged $10,000 loan from Ivy to Suzanne [ 40 ] This relief is sought in Suzanne’s May 2, 2022 application. As noted by Frederick’s counsel, there is no evidence provided by Suzanne of such a loan. In her written argument, Suzanne seeks a total of $9,979.50 for this alleged loan without citing to any evidence. [ 41 ] Suzanne’s affidavits filed in support of this application do not address this loan. [ 42 ] I am unable to grant any relief related to this issue on the evidence before me. Suzanne’s Additional Relief [ 43 ] Below, I address each ground of Suzanne’s Additional Relief.

None of these issues were pleaded in the Suzanne Applications. What I will say is that I am mindful of the fact that the default rule is that relief sought must be specifically plead, and that courts should generally avoid granting remedies that are not expressly or implicitly sought in the pleadings: Knelsen Sand & Gravel Ltd v Harco Enterprises Ltd , 2021 ABCA 385 at para. 100 (Alta. C.A.); see also Mazepa v. Embree , 2014 ABCA 43 at para. 9 (Alta. C.A.) [“ Mazepa ”]. [ 44 ] While the case law and the Rules of Court , Alta.

Reg 124/2010 (in particular Rules 1.3 and 1.5 ) provide some discretion, I do not think that discretion should be exercised in this case and I would dismiss the request for all of the Additional Relief on the ground that it was not plead in the Suzanne Applications. In the circumstances of this particular case there is no waiver or agreement by Frederick that the court consider such relief such that I could deem the Suzanne Applications to be amended, and I decline to do so: Mazepa , supra. [ 45 ] Nonetheless I will address each ground specifically. (

h) An $80,000 loan allegedly made from Suzanne to Frederick, which Suzanne wants paid from Frederick’s portion of the Estate [ 46 ] There is no application before the court as between Suzanne and Frederick relating to an alleged $80,000.00 loan between them. Suzanne did adduce evidence with respect to this loan, providing a loan document between Frederick, Suzanne and Charlene dated September 1, 2006 with a 20 year term in the amount of $150,000, a promissory note in the amount of $5,000.00 dated August 8, 2008 between Frederick and Suzanne, and two bank drafts made out to Suzanne totalling $75,000.00.

Her evidence is that this represents the amounts paid back by Frederick, leaving $80,000.00 outstanding. [ 47 ] I note that the term of this loan has yet to mature. More importantly, if anything, this is a civil matter between Suzanne and Frederick and not properly part of the Estate or these proceedings. In the absence of an application in relation to these loans, I am not prepared to make any findings nor grant the relief requested on an incomplete application and an equally incomplete factual record.

Frederick has not had the proper opportunity to respond to the various legalities raised by this evidence of Suzanne. (

i) A request for reimbursement from the Estate in the amount of $4,460.41 for credit card interest Suzanne says was incurred in relation to funeral expenses for Ivy [ 48 ] This issue was not pleaded nor the relief sought in the Suzanne Applications. The evidence before the court suggests that Suzanne was in fact overpaid for funeral expenses. Suzanne paid a deposit for Ivy’s Funeral in the amount of $3,500.00 on June 18, 2018. This was reimbursed by the Estate twice – once on December 20, 2019 by way of bank draft, and gain January 10, 2020 by way of bank draft.

While counsel suggested the amount sought is related to interest arising from the length of time it took Suzanne to be repaid, there is no evidence on the record to support a debt owing to Suzanne for interest on credit card amounts relating to Ivy’s funeral. I decline to make any order in relation to this issue. (

j) Whether there are assets of the Estate in Switzerland [ 49 ] There is no evidence whatsoever on the record that Ivy had assets in Switzerland. This issue was raised by Suzanne’s counsel in written materials and in oral argument. Frederick has not deposed to any such assets, nor has Suzanne. If anything, should Suzanne possess any knowledge that Ivy’s Estate includes assets in Switzerland, I direct her to forthwith disclose all details and documents or other records relating to same to Frederick as the Executor and personal representative of the Estate so that they may be properly administered and accounted for. (

k) Whether or not Frederick will “remain” the personal representative of the Estate [ 50 ] There is no application before me which seeks to remove Frederick as personal representative. Suzanne did not request it or argue it in the hearing; she seems to agree that Frederick continue as personal representative of the Estate at this time. I dismiss this argument made by Suzanne. (

l) That Frederick provide an Estate accounting quarterly (which was modified in oral argument to every 2 years in accordance with the Surrogate Rules [cite]) [ 51 ] This issue has been addressed above, under issue (f).

(

m) That Frederick cause the Estate to hire a mid-tier professional accounting firm, at the Estate’s expense, going forward [ 52 ] It was argued by Suzanne that this is required due to the fact that these applications were brought, and it was through the application process and evidence gathering that Suzanne’s concerns were answered.

Suzanne argues that this Estate, due to the litigious past and the complexity of the Trinidad and Tobago assets, requires Frederick to hire a mid-tier Canadian accounting firm to administer the Estate at the cost of the Estate. [ 53 ] When the court reviews the nature of the litigation between Frederick and Suzanne, what is clear is that there has been several years of examinations and evidence gathering by Suzanne in relation to her applications. No stone has gone unturned. No allegation was left unmade.

Yet, at the end of the day, no misconduct nor serious accounting errors by Frederick have been proven or argued before me. [ 54 ] The reality is that Suzanne may trust Frederick, but that is Suzanne’s concern, not Frederick’s, nor the Estates. That lack of trust has not translated into any liability for Frederick in these proceedings, nor any misconduct. Counsel indicated in oral argument that Suzanne had incurred personal costs due to the fact that she had to hire her own accounting firm to review the work done by Frederick. If Suzanne wants to do this, that is her choice.

That cost should not be foisted on to the Estate. [ 55 ] Frederick is a Certified Professional Bookkeeper. At every turn of this litigation, he has answered Suzanne’s queries, at one stage hiring external bookkeeping assistance, and provided extremely detailed information, sometimes with several iterations of the same information, organized in different ways, to try to respond to Suzanne’s requests and appease her.

At the end of the day, the only issues remaining for this court to decide on the Suzanne Applications are minor at best and consist also of issues never raised in the applications and not supported on the evidence. [ 56 ] If, in his discretion as Executor and personal representative, Frederick reaches a point where he decides he must hire a third- party accounting firm to assist in the administration of the Estate due to complexity or other reasons, that is something he is free to do. (

n) A request for a non-disparagement agreement amongst Frederick, Suzanne and Charlene [ 57 ] This was not a part of the Suzanne Applications, and it was not argued in oral argument. I have no evidence before me of any disparagement between Frederick and Suzanne that would suggest that the court should entertain making such an order. I decline to make any order. (

o) A request in relation to handling of family photo albums [ 58 ] As the personal representative of the Estate, Frederick is the party with the power and duty to administer the Estate, which includes the family photo albums. There was no relief sought in relation to the handling of the photo albums and I agree with Frederick’s counsel this does not warrant the court’s intervention at this time. Conclusion on the Suzanne Applications [ 59 ] The relief sought before the court in the Suzanne Applications is dismissed.

Frederick has agreed to provide updated inventory documentation regarding the Trinidad and Tobago assets of the Estate in accordance with the new form, and has committed to continue to provide accounting in accordance with the EAA and the Surrogate Rules . [ 60 ] Suzanne’s requests for Additional Relief are dismissed. [ 61 ] Because of the submissions of counsel related to Switzerland, should it exist, Suzanne is directed to forthwith disclose to Frederick as Executor of the Estate all records or other information, including any information in her own personal records and journals regarding any and all assets, real or personal, of the Estate that may exist in Switzerland and to assist Frederick in taking steps to realize upon those assets, if they in fact exist.

The Frederick Applications [ 62 ] I turn now to address the relief sought in the Frederick Applications. Frederick’s Application for Advice and Directions [ 63 ] Frederick’s first application was filed March 1, 2022. It is an application for advice and directions from this court pursuant to the provisions of the EAA (the “ Frederick AD Application ”). Some of the relief sought in this application is no longer in issue.

That application also sought that all the applications in issue be heard together, and that the transcripts in the various applications apply to all applications. [ 64 ] In addition, the Frederick AD Application seeks direction from the court as to who has authority over Ivy’s ashes, as well as an accounting from Suzanne over any transfers of personal items, distributions, or payments she made from Ivy’s assets following her

death “to date”. Of this latter relief, the only assets argued at the application related to certain items of jewelry Ivy’s, that Suzanne admitted she had in her possession of, and whether Suzanne had taken two yellow diamonds from Ivy’s safety deposit box. With respect to the diamonds, there is a threshold issue as to their existence in fact, and whether I am able to make such a determination on the record before me. Ivy’s Ashes [ 65 ] The parties are aligned on what Ivy’s wishes were with respect to her remains, but they are diametrically opposed as to who should hold them.

Ivy desired that her ashes be taken to Trinidad and Tobago and be scattered there. Frederick, Charlene, and Suzanne were to travel there together to accomplish that. [ 66 ] Initially, Frederick, as the personal representative of the estate and its Executor had custody of Ivy’s ashes. It appears from the evidence that Suzanne removed them from Ivy’s home, during the transitional period of selling Ivy’s Calgary home and distribution of her personal property here. Suzanne indicated that she had informed Frederick and he took no objection to that. That was before the differences between Frederick and Suzanne arose.

Frederick requested to have the ashes back, and Suzanne has refused, suggesting that the reason for this is that Frederick was going to divide the ashes into three rather than scatter them as noted above, which Frederick denies. This dispute, the COVID-19 pandemic, and some health issues on the part of Suzanne have further compounded the issue. [ 67 ] The parties agreed that this issue is governed by the EAA and the Funeral Services Act , RSA 2000, c. F-29 (“ FSA ”), in particular the General Regulation Alta Reg 226/1998 promulgated thereunder. In particular,

section 6 of the EAA states in part that the FSA “and the Cemeteries Act and the regulations under those Acts apply to the determination of who has the authority to control and give instructions for the disposition of human remains and the making of funeral arrangements.” [ 68 ] Section 36(2) of the General Regulation under the FSA codifies who may control disposition of the remains of a deceased person. It sets an order of priority among certain classes of individuals, “subject to an order of the Court”. The subsection states:

(2) Subject to an order of the Court, the right to control the disposition of human remains or cremated remains vests in and devolves on persons in the following order of priority : (

a) the personal representative designated in the will of the deceased ; (

b) the spouse or adult interdependent partner of the deceased if the spouse or adult interdependent partner was living with the deceased at the time of death; (

c) an adult child of the deceased ; (

d) a parent of the deceased; (

e) a guardian of the deceased under the Adult Guardianship and Trusteeship Act or, if the deceased is a minor, under the Child, Youth and Family Enhancement Act or the Family Law Act; (

f) an adult grandchild of the deceased; (

g) an adult brother or sister of the deceased; (

h) an adult nephew or niece of the deceased; (

i) an adult next of kin of the deceased determined on the basis provided by sections 67 and 68 of the Wills and Succession Act ; (

j) the Public Trustee; (

k) an adult person having some relationship with the deceased not based on blood ties or affinity; (

l) the Minister of Seniors, Community and Social Services. [Emphasis added] [ 69 ] The statutory default is that Frederick should have possession and control over Ivy’s ashes. [ 70 ] Frederick indicates that he is legally entitled to have custody of Ivy’s ashes and that Suzanne be ordered to return them.

He further indicates that his intent is not to divide them, but to honour Ivy’s wishes and use best efforts to ensure that the three siblings can travel to Trinidad and Tobago together to scatter Ivy’s ashes in accordance with her wishes. [ 71 ] In argument, Suzanne did not heartily contest the issue that Frederick ranks above her in statutory priority. She argued that her actions were borne of mistrust, and fear that Frederick might do something with Ivy’s remains that was not in accordance with her wishes.

In fact, in argument Suzanne said there is “some merit” to Frederick’s argument, but that the court retains discretion to make an award that is “proper”. [ 72 ] The reality is that the evidence before the court does not show that Frederick intends, or will do anything other than ensure that Ivy’s wishes are followed, and that he will (as he has in the past) take steps to work with Charlene and Suzanne to try to arrange travel for the three of them at a mutually convenient time to travel to Trinidad and Tobago to scatter Ivy’s ashes. [ 73 ] There are no extraordinary circumstances here that would cause the court to exercise its discretion to override the statutorily mandated order of priority set out above.

Suzanne is directed to forthwith return Ivy’s ashes to Frederick. Frederick is directed to use reasonable efforts to arrange with Charlene and Suzanne to travel to Trinidad and Tobago within the next 12 months (or such other time frame as all parties may agree) for the purpose of scattering Ivy’s ashes. If a trip cannot be arranged within 12 months of the date of this

decision, and if an alternate time frame cannot be arranged, Frederick is free to book travel to Trinidad and Tobago as he sees fit and toprovide at least 30 days advance notice to Charlene and Suzanne of such travel so that they may have the opportunity to come if theywish. [74] Unless Frederick, Charlene, and Suzanne agree in writing, the ashes are not to be divided. Ivy’s Jewellery and “the Diamonds” [75] There is no issue between the parties that Ivy had a reasonably significant collection of jewelry.

There is also no disagreementthat Suzanne has that jewelry in her possession and has refused to provide it to Frederick. As at the date of the hearing, counsel forSuzanne informed the court that it had been transferred into counsel’s possession, and that an inventory, with photographs, had beenprovided to Frederick’s counsel. Suzanne also had the jewellery appraised (by her husband, if the court understands the evidence), to avalue of approximately $41,484.00 CAD. I make no specific finding on the value of the jewellery.

The parties seem to agree on thecontent of what that jewellery is comprised of. [76] Suzanne says that she withheld the jewellery because Ivy, during her lifetime, gave instructions to Suzanne to gift thejewellery to certain individuals of her choosing.

Suzanne argued at the oral hearing that either Ivy’s Will was modified, a trust wascreated by Ivy’s instructions, or the items were gifted to the intended recipients prior to Ivy passing such that the jewellery does not formpart of the Estate. [77] In reliance on such arguments, Suzanne points to an unsigned, undated note purportedly from Ivy to Suzanne, a text messagebetween her and Charlene contemporaneous with Ivy expressing her wishes, the fact that one or more items of jewellery were in factdelivered to recipients while Ivy was alive, and certain handwritten notes of Suzanne (and her counsel, on the advice of Suzanne) whichindividuals were to receive which pieces of jewellery, plus tags Suzanne created and gift bags for each piece. [78] Frederick argues that the note was insufficient to modify the will, no trust known to law was created, nor was any inter vivosgift perfected such that the jewellery is not a part of Ivy’s Estate.

Frederick further argues that even if the handwritten note is Ivy’swriting, it does not pass muster for the legal test in form or content for an inter vivos gift or a trust. In short, Frederick argues that Ivy’sintentions at best were partially expressed, and that it is difficult to thread out what Ivy’s expressed intentions were from Suzanne’s,given that the specifics are all in Suzanne’s handwriting. [79]

Section 36 of the EAA states: 36 After the issue of a grant, no person other than a personal representative to whom it is issued has the authority to act with respectto the estate affected by the grant until the grant has been revoked or the personal representative has been discharged. [80] Frederick argues that if the jewellery is a part of the Estate then only Frederick, at law, should hold or control it, and that he isakin to a fiduciary with respect to the assets of the Estate (EAA, ss. 5 and 7; Wood’s Homes Society v Selock, 2021 ABCA 431 at para.14 (Alta. C.A.)). I agree.

The real question is whether the jewellery is a part of the Estate. [81] The undated, unsigned handwritten note (allegedly made by Ivy) states: “My dear Suzanne Thanks for everything I am asking you this favour.

I want you to please gift my jewels to all the family and good friends I will be so very happy Love now I love you Mummy” Is the note a Valid Holographic Codicil? [82] Frederick argues that this is not a valid holographic codicil modifying the Will, because it is not signed by Ivy, it does notshow the required animus testendi (it is not certain in that it is not a deliberate, fixed and final intention). [83] To be a valid holographic codicil, at the very least the note must have been signed by Ivy: Laidlaw Estate, 2010 ABQB 132 atpara. 11 (Alta. Q.B.)[“Laidlaw”]; Wills and Succession Act, S.A. 2010, c.

W-12.2 (“WSA”) at ss 1(1)(k), 16.

Further, the holographiccodicil must be wholly in the testator’s handwriting: Laidlaw at paras. 11, 22, 23, WSA at s. 16; see also, Elkassem Estate (Re), 2022ABQB 279 at paras. 27-37 [“Elkassem”]. [84] In Elkassem, the court noted, citing from Bennett v Gray/Bennett v Toronto General Trusts Corporation, (SCC), [1958] SCR 392 at 396 that the Supreme Court of Canada said in that case that “...a holographic paper is not testamentary unlessit contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent uponthe party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of thatcharacter and nature…”.

See also, Re Mackasey Estate, 2022 ABKB 662 (Alta. K.B.).

[85] I also have reference to s.37 of the WSA, which states that: 37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was notmade in accordance with

section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out thetestamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will. [86] Here, that evidence does not exist.

Section 37 was not argued, and I find its requirements have not been met. [87] While Frederick was prepared to accept for the purposes of argument that this note is in Ivy’s handwriting, I am not so sure.No handwriting expert was tendered by the parties, and the court is not a handwriting expert. However, comparison of this note withsome of the other examples of Ivy’s handwriting provided by Suzanne does raise some questions in the mind of the court.

Further, thenote was produced during the course of the litigation between the parties on this issue. [88] Even accepting that this note was written by Ivy, without finding it to be so, I agree that it is not a valid holographic codicil.There is no clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by thetestator to be her will or a revocation of his or her will (nor an amendment thereto). [89] The note is undated and unsigned.

It is completely unspecific as to who is to receive the “jewels”, and does not itemize, in anyway, what the writer is referring to by “jewels”. Similar to Elkassem, the document does not deal with personal representatives, norresidual beneficiaries. It does not refer to the Will, nor an intent to change or revoke it (assuming the Will was in place when it waswritten, if it was not, this note would be superseded by the Will in any event).

The note was not located with or in the Will, it wasproduced, some time after litigation commenced, by Suzanne. [90] The tags were labeled by Suzanne, and the other attributions to intended recipients were made by Suzanne or her counsel onthe advice of Suzanne. The text messages between Charlene and Suzanne are of no assistance.

They are undated, and in fact, althoughhearsay, Charlene raises concerns with Suzanne’s capacity in them, saying in relation to the jewellery that “She may think things arestolen if they are somewhere in the room so watch out for that.” This is suggestive of the possibility that the note, even if it were draftedby Ivy, may have been drafted at a time when her capacity was in issue. [91] I dismiss this argument by Suzanne. There is no holographic codicil that is valid at law. The note does not alter the Will.

Did Ivy Create a Trust? [92] With respect to the formation of some kind of trust through the evidence, this seems to have been an argument that counsel forSuzanne put forward on the fly in the hearing. The Court asked Suzanne’s counsel about the three certainties required for a common lawtrust given that there is no written trust deed, being the certainties of object, subject matter, and intention: Edmonton Pipe IndustryPension Plan Trust Fund v. 350914 Alberta Ltd., 2000 ABCA 146 at para. 19. Counsel did not have a cogent answer to this.

The realityis that there is no certainty of intent to create a trust for an unspecified and unnamed number of beneficiaries, with Suzanne as trustee, todistribute an unknown subject matter of “jewels” to those unknown parties. [93] Suzanne’s argument in this regard is dismissed. Was there a valid inter vivos gift of the jewellery? [94] This leaves whether the facts before the court constitute a valid inter vivos gift of the jewellery.

The law requires that the giftbe made while Ivy was alive and not in expectation of death (as donor) and that the full intent of both Ivy and the donees were that theproperty be retained by the donee as their own: Scott (Estate) v. Scott, 2002 ABQB 352 at para. 51 (Alta. Q.B.) [“Scott”]. The threerequirements of a valid inter vivos gift are: (

i) an intention to donate; (ii) a sufficient act of delivery; and (iii) acceptance of the gift: Scott,at paras. 50 and 52. Courts will not perfect an imperfect gift: Scott at para. 71. [95] The burden of proof is on the applicant seeking to validate the gift, and the standard of proof for the intention to donate ishigh. There must be a clear and unmistakeable intention on the part of the done to make a gift: Scott, at para. 53, citing the ManitobaCourt of Appeal in Blahey v. Stutsky, (MB CA), [1990] 2 WWR 632 referred to the test as setout in Johnstone v.

Johnstone (1913), (ON CA), 12 D.L.R. 537. [96] Here, while there is evidence in the note of some intention to gift her “jewels” to “all the family and good friends”, the noteis completely insufficient at law to satisfy the legal test for an inter vivos gift. Nor is the extraneous evidence sufficient for the samereasons just discussed above.

In addition, there is no evidence of any donees and their willingness to accept such gifts during Ivy’s life,and the fact that Suzanne has this jewellery in her possession is not a sufficient act of delivery at law to constitute completion of any gift.Suzanne agreed in cross examination that Ivy did not gift her any of the jewellery while she was alive by delivering it to her. She didindicate that Ivy intended to do so. [97] I note that Suzanne has “self assigned” some of the jewellery in issue.

I do not consider this jewellery to have been gifted toSuzanne, nor do I find that there existed a sufficient intention to donate and deliver that jewellery to Suzanne. There is simply not enoughevidence to prove that before the court, and the note suggests otherwise in any event. It does not say that Suzanne is to receive any of thejewellery. A gift alleged to have been made by a deceased person by the purported recipient cannot be made without some corroboration:Phillips v. Avena, 2006 ABCA 19 at para. 69.

Here there was no such corroboration. [98] There was no valid inter vivos gift of the jewellery in issue by Ivy to anyone while she was alive. While some pieces ofjewellery were certainly actually gifted during Ivy’s lifetime, those pieces were delivered to selected recipients, and are not in issue inthis litigation. What is in issue is the jewellery that is currently in the hands of Suzanne and Suzanne’s counsel. All Ivy’s jewellerycurrently in the custody of Suzanne or her counsel is ordered to be delivered to Frederick or his counsel forthwith.

It is part of theproperty of the Estate and subject to the terms of the Will. If Frederick, in consultation with Suzanne and Charlene, wishes to discuss the

manner in which the jewellery will be distributed amongst the beneficiaries, or others for that matter, or whether it will be sold, he is free to do so, but as personal representative of the estate and Executor he has the right to have the jewellery in his possession and to decide what to do with it for the benefit of the Estate. The “Missing Diamonds” [ 99 ] Frederick alleges that his mother had three yellow diamonds in her possession during her life. He also alleges that his mother liked to do things in threes, and that he, Charlene and Suzanne were to receive one of the diamonds.

Frederick also alleges Suzanne received her diamond for an engagement ring, and that he saw the other two diamonds (his and Charlene’

s) in Ivy’s safety deposit box before she died. [ 100 ] There seems to be no dispute that Suzanne did in fact receive a diamond from Ivy during her lifetime which was gifted to Suzanne and used in Suzanne’s engagement ring in or around 1997. Suzanne’s evidence is that this is not a yellow diamond. An appraisal appended to Suzanne’s evidence in these proceedings dated from 1999 values that ring at $21,895.00 CAD plus GST. [ 101 ] Suzanne also testified that there were in fact three yellow diamonds, one representing each child, in Ivy’s wedding ring, which is included in the jewellery dealt with above.

Suzanne disputes the existence of the other two diamonds for Frederick and Charlene, denies taking any diamonds, and instead indicates that each of the children were to receive a ring of their mother’s and that Frederick and Charlene in fact did so. [ 102 ] The affidavit evidence on this issue is in complete conflict. The cross examinations of the parties perpetuate that conflict. On the mixed record before the Court, I cannot find, on the record before me, there were three diamonds in existence, whether two have gone missing, and if so, whether Suzanne is the party who took them.

This issue would require further evidence and viva voce testimony. I note that Frederick has accounted for their existence in the NC 7’s he has filed with the Court. Either this issue will work itself out between the parties, or there will need to be a streamlined trial or some other hearing to permit the Court to make the necessary findings of fact. Frederick’s Application to Have Suzanne Pass Accounts as Ivy’s Attorney [ 103 ] Frederick filed an Originating Application on March 14, 2022, pursuant to the terms of the PAA , seeking that Suzanne be directed to pass accounts pursuant to the POA and then the EPA.

As noted above, the POA and EPA deal only with Ivy’s assets in Canada. Frederick was Ivy’s attorney under the T&T POA for the assets in Trinidad and Tobago. [ 104 ] The POA was in effect until November 30 th , 2017, when Ivy was declared to be incapacitated by a physician pursuant to the provisions of the PAA . At that point, Suzanne’s authority under the POA ceased and was replaced by the EPA. [ 105 ] Frederick argues that Suzanne’s actions pursuant to the POA, and then the EPA are in essence unknown to him due to a lack of disclosure and are hindering his ability to properly administer the Estate.

Frederick also argues that Suzanne has not produced sufficient information, documentation or accounting information related to Ivy’s affairs while she acted under the POA and EPA. Frederick notes that in cross examinations, Suzanne admitted to being very particular about journalling such matters and other matters, yet undertakings requesting her journals were refused. [ 106 ] In cross examinations Suzanne gave evidence that under the 2006 POA, and prior to any capacity issues arising, she only assisted her mother with her affairs in Canada when she traveled to Trinidad and Tobago.

It seems clear that leading up to, and after Ivy was declared incapacitated on November 30, 2017, to the time of her death, that Suzanne was acting under the POA and EPA as applicable, as required. [ 107 ] There is very little documentary evidence before the Court from Suzanne about what she did for Ivy, if anything, under the POA and EPA (although some records were produced relating to January - June of 2018 by Suzanne in partial response to an undertaking request).

Suzanne has refused to provide an accounting to Frederick. [ 108 ] Frederick argues that the PAA is clear, and that Suzanne has a clear statutory duty to account, and that the Estate is entitled to such accounting going back to the effective date of the POA and spanning up until Ivy’s death in 2018.

The Application of the Limitations Act to Frederick’s Originating Application [ 109 ] In her written brief of argument responding to Frederick’s Originating Application, for the first time, Suzanne raised the issue of limitations, and argued that Frederick’s application for relief was statute barred by the provisions of the Limitations Act , RSA 2000, c L- 12 (“ LA ”). [ 110 ] Frederick’s response to this was that Suzanne cannot seek relief under the LA , as she failed to expressly plead the LA , and only raised the issue for the first time in her written argument filed long after the parties had spent the better part of two years fully litigating the issues.

In the alternative, Frederick argues that Suzanne waived her right to rely upon the LA , and further argues that the proper commencement date of any limitation period under the LA is March 7, 2022. [ 111 ] In oral hearing, I also asked the parties to submit additional written submissions on s.6 of the LA , and whether, in light of the Jones Order or otherwise, that

section could be said to apply to Frederick’s Originating Application (i.e. that his request amounted to a counterclaim to the Suzanne Applications that preceded it, such that s. 6 might be applicable to permit Frederick to bring his application forward notwithstanding the passage of the relevant limitation period. The Requirement to “Expressly Plead”

[ 112 ] The record is clear that the first time the LA was raised was when Suzanne filed her response brief to the Originating Application on November 27, 2023. Prior to this, Frederick had no notice whatsoever that Suzanne intended to rely upon the LA to defend against Frederick’s application. The written argument was responded to by Frederick when he filed his response brief to the Suzanne Applications on December 5, 2023, as otherwise he would have had no opportunity at all to respond in writing to this new allegation.

The reality is that Frederick had a week to respond to Suzanne’s limitations defence and had no opportunity whatsoever to respond to such a defence during the evidence portion of the applications. [ 113 ] The law is clear that a defence under the LA is only available to a party if they expressly plead the LA as a defence. Section 3(1) of the LA states: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1, 3.2 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence , is entitled to immunity from liability in respect of the claim. [Emphasis added] [ 114 ] This requirement has been affirmed in Makowichuk v.

Makowichuk , 2013 ABCA 439 , followed in Cummings v Steinke & Company Realty Ltd. , 2015 ABCA 55 at para. 23 (Alta. C.A.). [ 115 ] Further, the Rules of Court require that a party relying upon a limitations defence specifically plead such a defence: Rules of Court , Rule 13.6(3)(

q) and (r). The reason for this is stated in the rule: it is one of those pleas that make take a party by surprise: Manji v Prasad , 2016 ABQB 273 at paras. 36-37 (Alta. Q.B.). [ 116 ] Specifically pleading the LA is a requirement under the LA and the Rules of Court . [ 117 ] However, that creates a procedural wrinkle in this case. Frederick brought his Action by way of Originating Application pursuant to s. 10 of the PAA , which states: 10(1) An application may be made to the Court for an order directing an attorney to bring in and pass accounts in respect of any or all transactions entered into in pursuance of the enduring power of attorney.

(2) The application under this

section may be made (

a) by the donor, the donor’s personal representative or a trustee of the donor’s estate, or (

b) if the donor is unable to make reasonable judgments in respect of matters relating to all or part of the donor’s estate, by any interested person.

(3) A copy of the application and any order granted in respect of the application shall, unless the Court provides otherwise, be served on the donor and the attorney.

(4) On hearing an application under subsection (1), the Court may grant whatever order for accounting it considers appropriate in the circumstances.

(5) This

section applies notwithstanding any agreement or waiver to the contrary. [ 118 ] As a result, Suzanne had, in the absence of a consent order or court order to the contrary, no right under the Rules of Court to file a response pleading. She had a right to file evidence, and she did so. Suzanne thus argues that the only opportunity she had to “plead” the act as a defence was when she filed her written brief on November 27, 2023. [ 119 ] Frederick relied on the decision of this Master Hanebury in Geophysical Service Incorporated v Devon ARL Corporation , 2015 ABQB 137 at para. 19 (Alta.

Master) [“ GSI ”] for the proposition that the above statutory requirement also applies to actions commenced by way of Originating Application.

The learned Master (as she then was), at para. 19, stated, referring to whether or not a limitations argument could be used to dismiss an originating application, that: “should an argument at some time be raised that an originating notice seeks a remedial order to which the Limitations Act applies, the Court has the discretion to deem an originating notice to be a Statement of Claim and require the filing of a Statement of Defence: rule 3.12.” [ 120 ] The GSI decision also discusses whether or not an Originating Application can be considered a “pleading”.

Of course, the definition of “pleading” in the Rules of Court does not include an Originating Application: Rules of Court, Appendix A:

Definitions, “pleading”. Even if the use of “pleading” in the LA is as a verb, there needed to be a procedural method put in place for Suzanne to plead. Counsel were unable to point the Court to any other authority addressing this issue.

[ 121 ] To me this is the critical point of Frederick’s argument, and the answer to Suzanne’s response. Section 3(1) of the LA and the Rules of Court require that a limitations defence be specifically pleaded.

Where an originating application is used as the commencement document (due to the matter otherwise properly meeting the requisite grounds for use of that document to commence an action in Rule 3.2), and a respondent wishes to rely upon a limitations defence, that respondent must put the applicant on notice in writing of same and seek relief under Rule 3.12 (either by consent or on application) to, at a minimum, permit the filing a defence to the originating application. To hold otherwise guts the purpose of that

section of the act and the rules and works significant procedural unfairness on an applicant, such as that which has occurred here. [ 122 ] It was incumbent upon Suzanne to put Frederick on notice of her intent to rely upon a limitations defence under the LA. Failing consent under Rule 3.12, Suzanne’s obligation was to apply, within a reasonable time of receipt of Frederick’s Originating Application, to seek leave of the court to deem the Originating Application to be a Statement of Claim (at a minimum) for the purposes of permitting her to file a Statement of Defence raising her limitations defence. She did not.

Nor did she take the simple step of even sending an email or letter, through counsel, to Frederick’s counsel, putting them on notice of her intent to rely upon a limitations defence in response to the Originating Application. [ 123 ] The whole purpose of being required to plead the LA when seeking to rely upon it is to avoid surprise and prejudice to the claiming party. The claiming party subject to a limitations defence that it has notice of will often behave differently than in a proceeding where no such defence is raised. They may structure their evidence differently.

They may be more open to different paths of resolution. To be able to do any of these things, notice is required. [ 124 ] The reality is that by lying in the weeds for nearly two years while Frederick proceeded with the Originating Application, which has been substantively contested, Suzanne failed to comply with the Rules of Court , with the LA . I dismiss Suzanne’s attempt to rely upon the LA on this ground alone. Waiver [ 125 ] Frederick also argues that Suzanne has waived her right to rely upon the LA .

The parties do not dispute that to waive this substantive legal right, Suzanne must have known about her right of defence pursuant to the provisions of the LA and have taken steps knowingly in the proceeding which amount to foregoing reliance upon the right. This must be unequivocal, when viewed objectively: Heikkila v. Alberta (Workers' Compensation Board, Appeals Commission) , 2003 ABQB 544 at paras. 39-41 (Alta.

Q.B.). [ 126 ] Frederick’s waiver arguments point to the relief Suzanne seeks in the Suzanne Applications, and Suzanne’s conduct in the litigation, including her production of records responsive to the relief sought in the Originating Application in response to an undertaking request (receipts for expenses purportedly incurred on Ivy’s behalf from January to June 2018 under the EPA) and the fact she sought reimbursement for them from the Estate. [ 127 ] In her application filed in May of 2022 (after Frederick filed his Originating Application), Suzanne sought, among other things, the following relief: a determination as to whether the application was “appropriate” and if so, what timeframe is reasonable for Suzanne to provide accounts. [ 128 ] Further, Suzanne did, as mentioned, produce records regarding her activity as attorney in the relevant time periods.

She also produced receipts for expenses she incurred, purportedly on Ivy’s behalf, prior to her death when acting under the EPA and sought reimbursement for those expenses, which included expenses for driving Ivy to appointments and for hospital parking. [ 129 ] Frederick says that this equates to a waiver by Suzanne of her ability to raise the LA in defence to the accounting requested in the Originating Application. [ 130 ] Suzanne argues that there was no clear and unequivocal waiver of her right to raise a limitations defence and that as a result no waiver occurred. [ 131 ] While given my decision on the requirement to plead the LA , it is not necessary to decide this issue, I agree that the conduct referred to by Frederick, is completely inconsistent with raising a limitations defence (which supports my decision on the requirement to plead in this case), it is not of such a blanket nature to be objectively construed as constituting a full waiver by Suzanne.

Commencement Date of the Limitations Clock and

Section 6 of the Limitations Act [ 132 ] Because of the late breaking nature of the limitations issues, and my request for submissions on whether s.6 of the LA applied in this case, the parties provided additional submissions on these issues. [ 133 ] Both parties scoured the record and made arguments on a variety of limitations start dates, and whether s.6 could apply in the circumstances of the case, depending upon the limitations start date.

If anything, this highlights the potential prejudice of failing to plead the LA in the first place by Suzanne. [ 134 ] What the parties’ submissions did show is that had the LA been pleaded, there may have been additional evidence put before the court on the issue of commencement of the clock for the purposes of the 2 year limitation period set out in the LA . [ 135 ] In their briefing, and in their supplemental submissions, neither party fully nor directly addressed the tripartite test for knowledge sufficient to start the limitations clock under s.3(1)(

a) of the LA, which states: (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred,

(ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 136 ] The reality is that if the Originating Application was filed in time, there is no need to address s.6 of the Limitations Act , and whether it even applies, at all. [ 137 ] Here, I find that the relevant injury would have required the actual or constructive knowledge of Frederick that Suzanne had in fact acted financially under the POA and the EPA for Ivy, that transactions that could be subject to an accounting under s.10 of the PAA had taken place first for the POA and then the EPA, and that, after a request from Frederick for an accounting by Suzanne, she failed or refused to comply with such a request.

This finding is bolstered by the fact that the PAA does not mandate accounting by an attorney, such that Suzanne’s refusal would be obvious absent demand which is subsequently refused. [ 138 ] Given my decision with respect to Suzanne’s failure to expressly plead the LA as a defence to Frederick’s originating application, I need not address the issue of the appropriate limitations start date.

However, if I am wrong on that issue, I find that the Originating Application was nonetheless filed in time for the reasons that follow. [ 139 ] Through fortuitous circumstances only, there exists sufficient evidence on the record before me that satisfies me that Frederick has met the burden of proof on this issue under s.3(5)(

a) of the LA . [ 140 ] There is no doubt that the mere fact of the POA or EPA, nor Ivy’s death, was not sufficient to meet the test under the LA for requisite knowledge that Frederick required an accounting from Suzanne, and that she would refuse to provide it, necessitating a court application under the PAA . [ 141 ] Suzanne points to an email from Suzanne to Frederick’s counsel dated March 8, 2019, that says: “Even though I was her Power of Attorney since 2006, Enduring Power of Attorney and had her Personal Directive, I always gave our mother her independence, respect and dignity throughout her life and her hospital stays and till her passing.

In a meeting with both siblings Frederick Prevatt and Charlene Prevatt June 24, 2018, we agreed that seeing that I lived in Calgary I would collect Ivy’s bills and send them to Frederick via the Dropbox which he setup for the family.” [ 142 ] Suzanne argues that when this email was confirmed received on March 11, 2019 that the limitation date began to run. I disagree. This email merely refers to the existence of the POA. It does not show that an accounting has been requested, nor that Suzanne is refusing to provide an accounting under the POA or the EPA to Frederick.

Further, the reference to bills post dates Ivy’s death, and has nothing to do with activities under those instruments pre-dating Ivy’s passing. [ 143 ] Suzanne also points to an email dated June 19, 2018 where Frederick emailed Suzanne, asking for Suzanne’s help in collecting Ivy’s files including invoices to be paid, invoices paid by Suzanne needing reimbursement, Ivy’s last tax return, Ivy’s insurance policies, deed to property and last bank statements.

Again, this is not sufficient to give Frederick the requisite knowledge to fulfil the requirements of s.3.1 of the LA for the commencement of the limitation period. [ 144 ] Both Suzanne and Frederick point to what appears to be the first request for information under any power of attorney on the record is a December 17, 2019 letter from Frederick’s counsel to Suzanne’s then counsel which states: “We understand that your client acted as the deceased’s Attorney during a time when the deceased had dementia. During this time we understand you client gave away numerous items of the deceased.

We request an itemized listing; valuation of each item, and to whom it was given.” [ 145 ] Suzanne argues that this letter means that Frederick was “aware of the claim for accounting at least by December 17, 2019.” Again, I disagree. [ 146 ] The evidence before me shows that there was a response to this letter by Suzanne’s counsel on December 23, 2019. That response was not a refusal. It reads as follows (in part): Further, Ms. Suzanne Prevatt acted as the Attorney pursuant to documents that Bennett Jones drafted and all information Mr. Frederick Prevatt was a party to. Mr.

Frederick Prevatt [sic] did not give away any personal property owned by Ms. Ivy Prevatt. However, Ms. Ivy Prevatt attended to her own matters during her life and gave away some of her items and then labeled her jewelry. The labelling of the jewelry was witnessed by several people and is waiting to be distributed to the beneficiaries. Therefore, there is no listing to be provided as nothing was given away.

However, an accounting is to be provided no later than January 10, 2019. [sic] [Emphasis in original] [ 147 ] This letter reads either as an agreement by Suzanne to provide an accounting, or a muddled demand for Frederick to provide an accounting.

In any event, it is not a clear and unequivocal refusal to account, sufficient to have put Frederick on notice that Suzanne had in fact acted under both the EPA and the POA and was refusing to pass accounts, necessitating a court application under the PAA . [ 148 ] Frederick’s counsel responded on January 9, 2020 refers to the December 17, 2019 letter and characterizes it as a request for “an accounting of your client’s actions as the deceased’s attorney.” This is clearer than the December 17, 2019 letter and is in fact a request for an accounting.

The letter concludes with: “Our client is agreeable to meeting at our office in the coming weeks with your client and yourself where the estate administration can be discussed face to face, and hopefully an agreeable path forward can be reached. This would be more cost efficient than proceeding to court. Please let us know if your client is open to this proposal.”

[ 149 ] Thereafter, a meeting was arranged between the parties to discuss this, and other issues. By February 6, 2020, in a letter from Frederick’s counsel, it appears clear that the meeting would not proceed as Suzanne had refused to permit Charlene to participate, although Suzanne’s evidence is unclear on this point, and further questioning on this issue was objected to by her counsel. In any event, the meeting did not happen.

In this letter, Frederick reiterates his request for Suzanne to account as Ivy’s attorney. [ 150 ] The correspondence does not make it clear whether Frederick was referring to both the POA and the EPA at this time. Frederick also points to the fact that in cross examinations in March of 2022 was the first time he learned that Suzanne had in fact exercised any powers under the POA, as she had previously denied doing so.

There is limited evidence that Frederick knew Suzanne was acting under the POA prior to March 2022. [ 151 ] When I review all of the relevant evidence, the fact is that while Frederick may have been aware of the POA and EPA, I find the very earliest he knew or ought to have known that Suzanne, as attorney under the POA or EPA, was refusing his requests to pass accounts under either of those documents was some time on or after February 6, 2020, when his counsel followed up after the failed meeting.

At this stage he knew or ought to have known Suzanne was refusing to pass accounts, and that a proceeding was warranted to get her to comply. [ 152 ] Of course, on March 30, 2020 Ministerial Order MO 27/2020 came into force. The result is that this order suspended limitation periods, including this one, for 75 days from March 17 to June 1, 2020. [ 153 ] Applying the applicable limitation period, Frederick had until Friday, April 22, 2022 to file his Originating Application to seek the relief he now seeks. His application was filed on March 14, 2022.

The application was brought in time and is not statue barred. [ 154 ] I note in passing that even if the January 9, 2020 date were used (the date of counsel’s first demand for a full accounting), which I do not, the Originating Application would still have been filed in time. [ 155 ] Given this finding, it is not necessary to address s.6 of the Limitations Act . [ 156 ] I will now address the merits of Frederick’s application for Suzanne to account.

Suzanne’s Obligation to Account under the PAA [ 157 ] Suzanne did not seriously contest her obligation to account if the limitations issue did not apply to bar her claim. She did make arguments about the time frame in which she be ordered to account. [ 158 ]

Section 8 of the PAA states: 8 Where (

a) an attorney has acted in pursuance of an enduring power of attorney or has otherwise indicated acceptance of the appointment, and (

b) the enduring power of attorney has not been terminated, the attorney has, unless the enduring power of attorney provides otherwise, a duty to exercise the attorney’s powers to protect the donor’s interests during any period in which the attorney knows, or reasonably ought to know, that the donor is unable to make reasonable judgments in respect of matters relating to all or part of the donor’s estate. [ 159 ] As an attorney, Suzanne owed and owes fiduciary obligations to Ivy and now her Estate. Any accounting she is directed to provide is to the Estate: Richter v Chemerinski , 2020 ABQB 307 (Alta.

Q.B.) at para. 215 ; see also Taubner Estate (Re) , 2010 ABQB 60 at para. 226 (Alta. Q.B.). The duties of a personal attorney include: keeping proper accounts of the trust estate; keeping the trust accounts distinct from other accounts; preserving receipts or cancelled cheques; producing accounts to the donor, Court or an interested beneficiary; and ensuring accounts clearly show all the monies and assets received are accounted for: Brown v Lefebvre , 2007 ABQB 195 at paras. 20 , 21 (Alta.

Q.B.). [ 160 ] The fact that Suzanne was Ivy’s attorney under the POA, and then the EPA, give rise to a clear duty to account, and I order that she do so pursuant to

section 10 of the PAA . I now address the scope and time frame that such accounting is to take place. [ 161 ] Frederick argues that Suzanne should be made to account from the time the POA was put in place in 2006, to the date of Ivy’s death, regardless of whether there were issues of capacity during this period. In support of that proposition, he relies upon the decision of the Ontario Superior Court of Justice in Roger Estate v Leung , [2001] O.J. No. 2171 . In that case, the deceased died intestate.

There was a power of attorney in place from December 31, 1981, and the Estate Trustees sought an accounting from the attorney from that date to present. The attorney agreed to pass accounts from March 21, 1996 (the date of death) to April 20, 2001 (the date of the hearing of the application). What was in issue was the time frame from December 31, 1981 to March 21, 1996.

There was no issue of capacity during this time. [ 162 ] The court in Roger Estate found that while there are elements in the agency relationship which require the attorney/agent to act as fiduciary, these elements are specific to the obligations of trust in the relationship, and that the obligation to account is “not necessarily” one with fiduciary elements. The expectation of the court was that the agent would have kept accounts and maintained them for the full period.

The court canvassed the common law duty of the agent to account and assessed that case in the context of the applicable legal regime then in force in Ontario. The court ordered cross examination of the agent on a statutory declaration that had been provided by the agent. [ 163 ] In the end, I do not find this case to be overly instructive, the principles of law arising in Alberta, and the terms of the PAA are

sufficient to dispose of the issues before me. [ 164 ] Subsection 10(4) of the PAA permits the court to “grant whatever order for accounting it considers appropriate in the circumstances”. This is a broad grant of discretion to permit the court to tailor the remedy to fit the circumstances of the case before it. [ 165 ] The POA dates back to April 24, 2006. That is nearly 18 years ago.

I am cognizant that some of the activity under the POA in the early years may have been informal, given Suzanne’s evidence that she used it to maintain Ivy’s affairs when she was in Trinidad and Tobago, approximately three months out of every year, and during a period when Ivy’s capacity was not in issue. I am mindful of this when granting this relief and think some flexibility must be exercised as to the expected nature and quality of any accounting during the 2006-2010 time frame for these reasons. [ 166 ] The time period regarding the POA after the EPA was executed is a different matter.

It was executed on September 14, 2010. I would expect that Suzanne would have maintained and kept full and proper accounts regarding her activities as Ivy’s agent during this time and continuing to the declaration of incapacity that triggered the EPA.

This is especially so given that Suzanne’s own evidence is that there were issues with Ivy’s capacity prior to the diagnosis of dementia June 19, 2017, and the declaration of incapacity on November 30, 2017 which triggered the EPA. [ 167 ] I order Suzanne, to the extent she has maintained records and files of any kind related to any activity under the POA (as she should have) from the time of inception to November 30, 2017, that are not in Frederick’s possession to produce those records to Frederick and provide an accounting of any and all transactions conducted by Suzanne on Ivy’s behalf in accordance with the requirements of Brown , supra, with respect to that time frame.

As indicated, the court is aware that there may be a dearth of information for earlier years (2006-2010) under the POA, but that the record keeping and information should become more fulsome and complete as time goes on, leading towards the triggering of the EPA, due to Ivy’s declining capacity.

This order will also include copies of any personal journals or other records relating in any way to acting under the POA. [ 168 ] I expect Frederick to keep in mind my comments about this issue when considering any information received from Suzanne for the 2006-2010 yeas, and whether the issue is worth pursuing further, especially given the periodic nature of Ivy’s absences from Canada.

A lack of records for later years may give rise to different issues. [ 169 ] With respect to the EPA, I order Suzanne to produce all records and files to the extent they are not in Frederick’s possession to Frederick and also to provide an accounting of any and all transactions conducted by Suzanne on Ivy’s behalf in accordance with the requirements of Brown , supra, from November 30, 2017 to the date of Ivy’s death on June 17, 2018.

This will also include copies of any personal journals or other records relating in any way to acting under the EPA. [ 170 ] I also order Suzanne to disclose a list of all assets (whether real or personal property, bank accounts, other financial accounts, or safety deposit boxes), wherever located, of Ivy’s that she became aware of during the currency of the POA and the EPA to Frederick. [ 171 ] The above should be completed within three months of the date of this decision. [ 172 ] Though not before me as it is governed by the laws of a foreign jurisdiction, I note in passing that Frederick may similarly be expected to comply with the requirements of him under the laws of Trinidad and Tobago in relation to the T&T POA for the purposes of reporting and administration of that portion of the estate as it evolves, given that it was apparently in place from 2007 onward.

Overall Conclusion [ 173 ] The Suzanne Applications are dismissed. Frederick is to continue to comply with his obligations as personal representative of the Estate, and to comply with all provisions of the EAA , including in relation to reporting and passing of accounts. I make no order requiring anything over and above Frederick’s extant statutory and legal obligati

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