Court finds no clear evidence that father lacked capacity when document was executed in 2012
The Ontario Superior Court of Justice has upheld a 2012 continuing power of attorney for property granted by the late Jose Pereira to his son, Robert Pereira. The court found insufficient evidence to establish that Jose lacked the capacity to execute the document.
However, the court ordered Robert to pass accounts for his management of his father's finances from 2012 until Jose died in 2025. The court found that specific substantial expenditures and transactions involving Jose's assets raised concerns about possible financial mismanagement, which warranted a formal accounting.
The dispute stemmed from a long-running conflict among Pereira's children about his capacity and how they administered his property after he suffered a debilitating stroke in 1999. Jose Pereira died in April 2025 at age 85, before the proceedings concluded.
His daughter, Grace Perriam, alleged that her brother Robert financially abused their father after moving into his Strathroy home in 2009. She claimed Jose lacked the capacity to grant a continuing power of attorney for property in March 2012. She also argued that Robert exercised this authority for his own benefit at his father's expense.
The court observed that Jose faced significant physical limitations after his stroke. He experienced paralysis on one side, struggled to move, and depended on his family for daily care and financial management. Grace argued that her father could not manage his affairs since the stroke and claimed Robert had gradually isolated him from other family members while taking over his finances.
Presumption of capacity
The Ontario Superior Court of Justice rejected Grace's application to invalidate the continuing power of attorney for property. The court presumed Jose was capable when he executed the document in March 2012. Ontario's Substitute Decisions Act establishes this presumption of capacity. The court determined that the evidence Grace presented failed to rebut that presumption or demonstrate that Jose lacked capacity at the time he granted the power of attorney.
The court identified the absence of a capacity assessment and noted that the medical evidence regarding Jose's cognitive abilities in 2012 was limited. Consequently, Grace failed to overcome the statutory presumption of capacity.
Concerns over financial management
Although the capacity challenge was unsuccessful, the court determined that concerns regarding Robert's management of his father's finances justified requiring him to pass accounts. The court reviewed bank records showing that Robert withdrew more than $92,000 from Jose's accounts for his own benefit between 2015 and 2023. Robert also spent these funds on vehicles, home renovations, and other purchases. The court found that these transactions raised legitimate questions about whether Robert fulfilled his fiduciary obligations as the attorney for the property.
The court concluded that Grace demonstrated a genuine interest in her father's welfare and raised concerns that extended beyond mere suspicion. Ultimately, the court ordered Robert to account for his management from March 23, 2012, when the power of attorney took effect, until Jose's death in April 2025.
