A Penticton senior will get upwards of $100,000 after a Supreme Court decision that heard her son misused his power of attorney privilege.
The Ontario Superior Court ordered more than $45,000 be returned to the 88-year-old woman from her son, along with the proceeds of a house sale.
“There has been a serious breakdown in the relationship among Irmgard’s children,” Ontario Superior Court Justice D.C. Shaw wrote in his Feb. 20 judgement, posted online last week.
Irmgard Burgstaler’s attorney of personal care and property had been her husband until his 2015 passing. Her son, Erwin Burgstaler, then took over the power of attorney for property.
But even before the question of Irmgard’s estate came into play, that breakdown in the relationship was brought forward by Erwin, who alleged his siblings were “engaged in a conspiracy against him,” and that he was assaulted and that his life was threatened. The court documents state the police had been called on numerous occasions.
In 2015, months after the patriarch’s passing, Erwin filed an unsuccessful application to gain a court order against his sister Barbara taking Irmgard to live permanently in Penticton.
In November 2015, Barbara and another sibling, Peter, requested Erwin pass Irmgard’s accounts — that is, gain court approval of the accounts. After failing to do this, he was ordered by a court to pass the accounts to his siblings in April 2016.
When Erwin did file the accounting, Shaw noted the spreadsheet and documents were “not in the form required on a passing of accounts,” and also listed 18 objections to the filing, including flights, a parking ticket, a per diem food expense and a rental car to Thunder Bay.
The judge also said he paid himself nearly $2,700 in “local commuting costs,” $100 for driving a woman to the airport “since nobody else offered to look after her,” and about $2,100 paid to himself for moving his property out of their parents’ house.
Over the span of 16 months, he also incurred about $45,000 in legal fees, which he paid for out of the mother’s estate, and “numerous, frequent and irregular transactions between various accounts (including that of Edward Burgstaler, who passed away on Jan. 5, 2015) that do not appear to have any purpose.”
He also reportedly gave no explanation for how he determined the assessed values of Irmgard’s assets.
On top of the 18 objections, Erwin spent $82,000 on a house he bought from an aunt, which in court he claimed to be an asset of Irmgard’s on a loan to himself.
“He testified that because the house would be his house, his siblings would be unable to put a ‘no trespass’ notice against it and interfere with his access to his mother,” the ruling reads.
But Shaw noted Erwin had only put the house in his own name, which he claimed was because Irmgard was not available to sign paperwork, and he had not created any loan documents.
After that, the bank put a freeze on the account, and despite a letter explaining his intention to pay her back for the house, the bank did not lift that freeze.
“There are no loan documents. There is no prescribed interest rate. There are no terms of repayment. There is no security for the loan,” Shaw wrote.
Erwin also claimed a compensation of over $8,000 for his attorney work on Irmgard’s estate.
In total, the judge found Erwin liable for about $50,000 in costs to his mother, but was also awarded $5,000 in compensation for his work as attorney of property.
Erwin was also ordered to sell the house he bought and pay back the $82,000 plus interest. He will also have to pay for his siblings’ legal costs.