In Perriam v. Pereira,[1] the Ontario Superior Court of Justice recently had to grapple with what evidence is required to rebut a presumption of capacity in relation to the granting of a power of attorney for property in 2012.
Background
Grace Perriam (“Grace” or the “Applicant”) initially brought the application in 2023, with a primary focus on the care and management of property of her father Jose Pereira (“Jose”). The application was brought against her brother, Robert Pereira (“Bob” or the “Respondent”), alleging significant financial abuse toward Jose since in or around 2009, when Bob had moved in with Jose. Jose had two other daughters who, while they did not participate in the litigation, swore evidence in support of the Applicant.
Jose suffered a stroke in 1999 that left him significantly debilitated and unable to work. Since then, he had been living in his home with the support of his family. His late wife managed his banking and finances along with Grace following Jose’s stroke. Jose’s wife passed away in 2009, with Grace taking over the bulk of his finances. However, in 2009, Bob, after losing his house, moved in with Jose along with his partner. It is also important to note that Jose had a limited ability to speak English, which caused an additional reliance on his family when dealing with financial institutions.
In her application, Grace submitted that thereafter Bob gradually excluded Grace and her sisters from Jose’s life, going as far as changing the locks on Jose’s home.
In 2012, Jose appointed Bob as his sole attorney for property. Immediately following this appointment, Bob removed Grace from Jose’s bank account. In 2022, Jose was admitted into a long-term care facility with barely enough money to cover his expenses. As such, Grace claimed that her brother had misused the power of attorney in breach of his fiduciary duties toward his father to divert approximately $90,000 from Jose’s bank account over an eight-year period for his own benefit, while also living rent free.
Grace further claimed that Jose was in fact incapable of granting the 2012 power of attorney for property (the “POA”) because of Jose’s stroke. She further submitted that her father was vulnerable to the undue influence of Bob, and as such was induced to spend money for Bob’s benefit beyond his personal means.
Bob, on the other hand denied Grace’s allegations, claiming that Jose was capable of granting the POA in 2012 as there is no hard evidence to show his incapacity during that time. He submits that, while he did take his father to his father’s lawyer to execute the POA, this was done at his father’s direction. Additionally, Jose had previously executed a power of attorney naming his late wife as his attorney for property, with Grace being named as the alternate attorney. The same lawyer prepared the POA and clearly had no capacity concerns when doing so.
An additional wrinkle in the proceedings arose in April of 2025, when Jose passed away. Grace had commenced her application in 2023, with a focus on the care and management of her father’s property. Now that Jose has passed, Bob argued that Grace is only continuing on with her application to get a larger “cut” of her inheritance and that an order for Bob to pass his accounts at this stage would be of little value and would be a disproportionate and financially burdensome exercise to impose upon their father’s modest estate.
Analysis
The application was heard on a record of affidavits, transcripts of cross-examinations, and submissions of counsel, including Section 3 counsel which was initially appointed to present Jose’s position on the issues. However, Section 3 counsel here concluded that Jose did not demonstrate a consistent or correct understanding about what had been done with his property, and as such Jose never swore an affidavit.
Another key piece of missing evidence concerned the files and records of the lawyer who had executed the POA. The lawyer, Mr. Reiss, had since passed away at some point since the 2012 meeting with Jose, and although inquiries were made, no records could be made available for the court to review. All that is known about the circumstances of the 2012 meeting with Mr. Reiss is that Bob had taken Jose to meet with the lawyer.
Section 3 counsel relayed that Jose had advised that he liked having Bob manage his property since they lived together and thought Grace was busy with her own life.
The Applicant argued that there was ample evidence to suggest that Jose was incapable of granting a power of attorney because of his stroke, pointing to records provided by the long-term care facility that Jose resided in showing a MMSE score of 7/30 that was completed in March of 2022.
Grace also submitted that the suspicious circumstances surrounding the execution of the POA add further weight to the conclusion that Jose lacked the capacity to grant it. She points to Bob’s dominant position in his father’s isolated life and the fact that Jose named only Bob as the sole attorney with no alternate, contrasting his previous power of attorney that appointed both the Applicant and her mother. Also of note, is that Jose’s will, executed in 2004, appointed Bob and Grace as joint estate trustees.
Despite these submissions, the Court was not prepared to find that Jose was incapable of granting the POA. Citing sections 2(1) and (3) of the Substitute Decisions Act,[2] the Court noted that the law presumes that Jose was competent at the time he executed the POA in 2012, as such, the Applicant must rebut this presumption of capacity with clear evidence on a balance of probabilities.[3]
While the evidence raised by the Applicant highlighted questions about Jose’s capacity, none of it was determinative, even on a cumulative basis. The fact that Jose suffered long-term consequences from the 1999 stroke and may have demonstrated symptoms consistent with dementia in the years preceding his death does not establish that he lacked capacity in 2012.
The Applicant pointed to a report made by Dr. Daniel Leung, who had been Jose’s primary care physician since 1984. In this report, Dr. Leung noted that he never made a capacity assessment but did identify that Jose had a “mental function” limitation in 2012. The Court found that, while this was an opinion of a qualified health care provider that Jose was markedly restricted in performing mental functions because of the 1999 stroke, and that the impairment was noted in the same year the POA was granted, this did not automatically translate to a determination of incapacity. Further, Dr. Leung did not testify or clarify what this mental function impairment might signify.
Notably, there was no assessment made by a qualified capacity assessor that offered an opinion of incapacity. There were additionally very limited medical records and information that could give the court any insight into Jose’s ability to grant the POA or manage his property in 2012. Section 3 counsel reported that Jose would not authorize the release of his records during the litigation.
The court did not lightly discount the circumstances in which Bob had assumed responsibility for managing his father’s property. However, given the application commencing over a decade after the event, it was too challenging to marshal reliable and credible evidence to show whether Jose lacked capacity to grant the POA. Justice Tranquilli opined that the outcome may have been different with the benefit of Jose’s lawyer’s files, but unfortunately, they were simply not before the court.
Although the Court was unwilling to make a declaration terminating the POA, an order was made for the Respondent to pass his accounts in respect of the POA for the period between March 2012 and Jose’s death. The Court seemed convinced that while the Applicant could not rebut the presumption of Jose’s capacity in 2012, there were certainly sufficient grounds to garner concern for Bob’s conduct as POA and therefore made the order for him to pass his accounts.
Final Thoughts
In my view, the tone that Justice Tranquilli delivers her decision in denotes some skepticism regarding Jose’s capacity to grant the POA in 2012, and suspicion around the circumstances in which it was executed. Despite that, she was still unwilling to make a declaration that the POA was invalid as a result of Jose’s lack of capacity. Additionally, while the Applicant mentions undue influence as being a concern, the Court did not undergo any analysis regarding whether the POA should be set aside based on undue influence. In any event, knowing the historic evidentiary hurdles involved in challenging powers of attorneys for undue influence, it is likely that the Court would have come to same conclusion in any event. This case is yet another prime example of how a decision largely will turn on how much actual evidence there is, rather than reported testimony of the litigants. It is yet another stark reminder that significant care should be always taken to document and record as much as possible, as failing to do so can be the difference between a successful application and a failure.
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[1] Perriam v. Pereira, 2026 ONSC 3180
[2] Substitute 20 Decisions Act , 1992, S.O. 1992, c. 30
[3] See Lewis v. Lewis, 2019 ONCA 690 at para. 3.
Written by: Mark Polese
Posted on: June 30, 2026
Categories: Commentary, WEL Newsletter
In Perriam v. Pereira,[1] the Ontario Superior Court of Justice recently had to grapple with what evidence is required to rebut a presumption of capacity in relation to the granting of a power of attorney for property in 2012.
Background
Grace Perriam (“Grace” or the “Applicant”) initially brought the application in 2023, with a primary focus on the care and management of property of her father Jose Pereira (“Jose”). The application was brought against her brother, Robert Pereira (“Bob” or the “Respondent”), alleging significant financial abuse toward Jose since in or around 2009, when Bob had moved in with Jose. Jose had two other daughters who, while they did not participate in the litigation, swore evidence in support of the Applicant.
Jose suffered a stroke in 1999 that left him significantly debilitated and unable to work. Since then, he had been living in his home with the support of his family. His late wife managed his banking and finances along with Grace following Jose’s stroke. Jose’s wife passed away in 2009, with Grace taking over the bulk of his finances. However, in 2009, Bob, after losing his house, moved in with Jose along with his partner. It is also important to note that Jose had a limited ability to speak English, which caused an additional reliance on his family when dealing with financial institutions.
In her application, Grace submitted that thereafter Bob gradually excluded Grace and her sisters from Jose’s life, going as far as changing the locks on Jose’s home.
In 2012, Jose appointed Bob as his sole attorney for property. Immediately following this appointment, Bob removed Grace from Jose’s bank account. In 2022, Jose was admitted into a long-term care facility with barely enough money to cover his expenses. As such, Grace claimed that her brother had misused the power of attorney in breach of his fiduciary duties toward his father to divert approximately $90,000 from Jose’s bank account over an eight-year period for his own benefit, while also living rent free.
Grace further claimed that Jose was in fact incapable of granting the 2012 power of attorney for property (the “POA”) because of Jose’s stroke. She further submitted that her father was vulnerable to the undue influence of Bob, and as such was induced to spend money for Bob’s benefit beyond his personal means.
Bob, on the other hand denied Grace’s allegations, claiming that Jose was capable of granting the POA in 2012 as there is no hard evidence to show his incapacity during that time. He submits that, while he did take his father to his father’s lawyer to execute the POA, this was done at his father’s direction. Additionally, Jose had previously executed a power of attorney naming his late wife as his attorney for property, with Grace being named as the alternate attorney. The same lawyer prepared the POA and clearly had no capacity concerns when doing so.
An additional wrinkle in the proceedings arose in April of 2025, when Jose passed away. Grace had commenced her application in 2023, with a focus on the care and management of her father’s property. Now that Jose has passed, Bob argued that Grace is only continuing on with her application to get a larger “cut” of her inheritance and that an order for Bob to pass his accounts at this stage would be of little value and would be a disproportionate and financially burdensome exercise to impose upon their father’s modest estate.
Analysis
The application was heard on a record of affidavits, transcripts of cross-examinations, and submissions of counsel, including Section 3 counsel which was initially appointed to present Jose’s position on the issues. However, Section 3 counsel here concluded that Jose did not demonstrate a consistent or correct understanding about what had been done with his property, and as such Jose never swore an affidavit.
Another key piece of missing evidence concerned the files and records of the lawyer who had executed the POA. The lawyer, Mr. Reiss, had since passed away at some point since the 2012 meeting with Jose, and although inquiries were made, no records could be made available for the court to review. All that is known about the circumstances of the 2012 meeting with Mr. Reiss is that Bob had taken Jose to meet with the lawyer.
Section 3 counsel relayed that Jose had advised that he liked having Bob manage his property since they lived together and thought Grace was busy with her own life.
The Applicant argued that there was ample evidence to suggest that Jose was incapable of granting a power of attorney because of his stroke, pointing to records provided by the long-term care facility that Jose resided in showing a MMSE score of 7/30 that was completed in March of 2022.
Grace also submitted that the suspicious circumstances surrounding the execution of the POA add further weight to the conclusion that Jose lacked the capacity to grant it. She points to Bob’s dominant position in his father’s isolated life and the fact that Jose named only Bob as the sole attorney with no alternate, contrasting his previous power of attorney that appointed both the Applicant and her mother. Also of note, is that Jose’s will, executed in 2004, appointed Bob and Grace as joint estate trustees.
Despite these submissions, the Court was not prepared to find that Jose was incapable of granting the POA. Citing sections 2(1) and (3) of the Substitute Decisions Act,[2] the Court noted that the law presumes that Jose was competent at the time he executed the POA in 2012, as such, the Applicant must rebut this presumption of capacity with clear evidence on a balance of probabilities.[3]
While the evidence raised by the Applicant highlighted questions about Jose’s capacity, none of it was determinative, even on a cumulative basis. The fact that Jose suffered long-term consequences from the 1999 stroke and may have demonstrated symptoms consistent with dementia in the years preceding his death does not establish that he lacked capacity in 2012.
The Applicant pointed to a report made by Dr. Daniel Leung, who had been Jose’s primary care physician since 1984. In this report, Dr. Leung noted that he never made a capacity assessment but did identify that Jose had a “mental function” limitation in 2012. The Court found that, while this was an opinion of a qualified health care provider that Jose was markedly restricted in performing mental functions because of the 1999 stroke, and that the impairment was noted in the same year the POA was granted, this did not automatically translate to a determination of incapacity. Further, Dr. Leung did not testify or clarify what this mental function impairment might signify.
Notably, there was no assessment made by a qualified capacity assessor that offered an opinion of incapacity. There were additionally very limited medical records and information that could give the court any insight into Jose’s ability to grant the POA or manage his property in 2012. Section 3 counsel reported that Jose would not authorize the release of his records during the litigation.
The court did not lightly discount the circumstances in which Bob had assumed responsibility for managing his father’s property. However, given the application commencing over a decade after the event, it was too challenging to marshal reliable and credible evidence to show whether Jose lacked capacity to grant the POA. Justice Tranquilli opined that the outcome may have been different with the benefit of Jose’s lawyer’s files, but unfortunately, they were simply not before the court.
Although the Court was unwilling to make a declaration terminating the POA, an order was made for the Respondent to pass his accounts in respect of the POA for the period between March 2012 and Jose’s death. The Court seemed convinced that while the Applicant could not rebut the presumption of Jose’s capacity in 2012, there were certainly sufficient grounds to garner concern for Bob’s conduct as POA and therefore made the order for him to pass his accounts.
Final Thoughts
In my view, the tone that Justice Tranquilli delivers her decision in denotes some skepticism regarding Jose’s capacity to grant the POA in 2012, and suspicion around the circumstances in which it was executed. Despite that, she was still unwilling to make a declaration that the POA was invalid as a result of Jose’s lack of capacity. Additionally, while the Applicant mentions undue influence as being a concern, the Court did not undergo any analysis regarding whether the POA should be set aside based on undue influence. In any event, knowing the historic evidentiary hurdles involved in challenging powers of attorneys for undue influence, it is likely that the Court would have come to same conclusion in any event. This case is yet another prime example of how a decision largely will turn on how much actual evidence there is, rather than reported testimony of the litigants. It is yet another stark reminder that significant care should be always taken to document and record as much as possible, as failing to do so can be the difference between a successful application and a failure.
—
[1] Perriam v. Pereira, 2026 ONSC 3180
[2] Substitute 20 Decisions Act , 1992, S.O. 1992, c. 30
[3] See Lewis v. Lewis, 2019 ONCA 690 at para. 3.
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