1. Introduction

Bennett v Bennett et al[1] is another sad example of a family dispute involving one family member, a son, who removed his father from the residence of another family member, and caused his father to executute powers of attorney for property and personal care.

2. Facts

Carl and Adessa Bennet have been married for almost 50 years. They have three children, Stephan, Makeshia, and Donnovan. Carl and Adessa have been largely estranged from Donnovan, although they spoke occasionally. Donnovan did not visit his parents unless he wanted money. Carl and Adassa spend time in Toronto and Jamaica and often reside six months each year in each place.

Because the Toronto apartment of Carl and Adassa was very small, Carl often lived with Makeshia in Toronto. While he was living with Makeshia. Donnovan forcibly removed his father from her residence in September 2023. Donnovan claimed that Carl texted him asking him to remove him from Makeshia’s residence because his living conditions there were unsafe. However, Adassa testified that Carl could not have sent a text since his SIM card did not work in Canada. Later in September 2023, Donnovan took Carl to a solicitor to sign a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care (collectively the ‘POAs’). Carl lived for a time with Donnovan in Brantford. Later Donnovan moved Carl into a retirement home. Finally, in April 2025, Donnovan moved his father to St Joseph’s Hospital in Hamilton, where he resides in the Alternate Care Unit.

During the time that Carl lived with Donnovan in Brantford, he denied Adassa and Makeshia access to Carl. Adassa was able to speak to Carl by phone only once, and Donnovan rebuffed her attempts to seek information about her husband. The police also refused to intervene to permit Adessa and Makeshia gain access to Carl.

In September 2024, Adassa brought a motion for access, and Dietrich J granted an order for unfettered access. At that point Carl was already living at the retirement home. Donnovan had installed surveillance equipment in Carl’s room. Adessa brought another motion to have the cameras removed. They were not. Adessa then brought a motion for contempt in January 2025, and the court ordered, inter alia, that the cameras be removed, that Carl was to be assessed for his capacity to make personal care and property decisions, and that Adassa and her family members were to have unsupervised access to Carl.

Carl had suffered a stroke in Jamaica in February 2023, and his family doctor reported that Carls’ memory was rapidly deteriorating. A medical assessment made in Ontario in December 2023 noted that Carl’s status was ‘incapable’.

In January 2025 Carl met section 3 counsel. Initially, Carl refused to meet him, but in a subsequent visit, he told counsel that he is not close to Donnovan and that he would prefer Adassa to make property and personal care decisions for him. Moreover, he told him that he wanted to move back to Toronto and live with Adassa. In March 2025 a Certified Capacity Assessor assessed Carl and concluded that Carl is not able to manage his own property or personal care.

Adessa brought an application for a declaration that the POAs signed by Carl in September 2023 are invalid for undue influence or suspicious circumstances, and that Carl lacked capacity when he signed them. In the alternative, she sought a declaration that Donnovan breached his fiduciary duties under the Substitute Decisions Act,[2] and that his authority as Carl’s attorney should be terminated. If the court grants either order, Adessa seeks to be appointed Carl’s Guardian of Property and Person. She submitted a Management and Guardianship Plan in support. The Plan states that it is her and Carl’s wish to take Carl back to Jamaica where he will be treated by his long-time physician and have access to an nearby hospital. The Public Guardian and Trustee (‘PGT’) provided comments regarding the Plan.

3. Analysis and Judgment

Justice Gilmore wrote extensive reasons in which she granted the application. In considering whether Carl had capacity, she considered the criteria listed in section 8(1) of the SDA, noted that Carl is presumed to have capacity and that Adessa had the burden of rebutting that presumption. Her Honour noted that each contact with police and medical personnel confirmed concerns about Carl’s cognitive abilities and his decline. Indeed, even Donnovan conceded that his father was medically incapable in January 2024. Her Honour referred to and considered the five factors contained in Royal Trust Corporation of Canada v Saunders[3] and in Rudin-Brown et al v Brown, and Brown v Rudin-Brown et al[4] with respect to testamentary capacity, namely:

1. the extent of physical and mental impairments of the testator at the time the will was made;
2. whether the will constitutes a significant change from a former will;
3. whether the will makes testamentary sense (or in the case of powers of attorney whether a power of attorney makes sense regarding the grantor’s best interests);
4. the financial circumstances of the testator at the time of will; and
5. whether any beneficiary was instrumental in the preparation of the will (or in the case of powers of attorney whether the attorney was instrumental in preparing the powers).

Her Honour concluded that there is evidence to prove that the POAs were executed under suspicious circumstances, including suspicious circumstances of capacity and undue influence. For that reason, Donnovan should be removed as attorney.

Her Honour went on to hold that even if she is wrong about the sufficiency of the evidence, Donnovan should nevertheless be removed on the ground that he breached his fiduciary duty in that he failed to comply with the relevant provisions of the SDA, namely sections 66(4), (5), (6), (7), and (10) that apply to an attorney for personal care, and sections 32 and 37 that apply to an attorney for property.

Regarding his duties as attorney for personal care, Donnovan failed: (a) to take into account Carls’s wishes; (b) to encourage him to participate in decisions made on his behalf; (c) to foster regular contact between Carl and supportive family members; and (d) to consult with family members. Moreover, Donnovan used restraints and monitoring devices even though they were not necessary to prevent bodily harm. Regarding his duties as attorney for property, Donnovan failed to provide transparency or any proper accounting. He also failed to make expenditures from Carl’s property that are reasonably necessary for his support, education, and care. And he failed to pay the costs award made against him by Dietrich J on the access motion. In addition, Donnovan did not disclose all of Carl’s financial information to Adessa. Accordingly, her Honour exercised her authority under section 12(1) of the SDA to terminate the POAs and to appoint a Guardian of Property and the Person for Carl.

Justice Gilmore went on to consider the factors listed in sections 24(5) and 55(3) of the SDA, namely:

• whether the proposed guardian is the attorney for the incapable person;
• what the current wishes of the incapable person are; and
• the closeness of the relationship between the applicant and the incapable person.

Her Honour concluded that Adassa is the most reasonable and logical choice for Carl’s Guardian of Property and of the Person, and that her Management and Guardian Plan provides the best plan for Carl’s future.

By reference to section 42(1) of the SDA, her Honour also ordered Donnovan to pass his accounts. And she fixed costs in favour of Adassa in the amount of $75,000, $40,000 to be paid by Donnovan personally and the rest from Carl’s assets.

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[1]    2025 ONSC 4756.

[2]    SO 1992, c 30 (‘SDA’).

[3]    2006 ONSC 19424, para 78.

[4]    2021 ONSC 3366, para 91.