Posted at 5:00 am
Caroline Touzin The press
C. and J.* have serious mental health problems.
The two brothers, in their forties, have always lived with their mother in the family home in Châteauguay.
C. is a severe case. In addition to his mental problems, he has an intellectual disability. He is on welfare.
J. is also very limited. He earns a modest income by working at the bottom of the corporate ladder. He has already been a victim of sexual abuse.
When her mother died in 2009, she made her two sons equal beneficiaries of a trust covering all their assets, including the house. The will then names a niece as trustee. The same niece becomes the owner of the house.
In 2015, C. was placed under state guardianship. Unable to care for himself and his property, he is now under the care of the Curateur public du Québec.
But the civil servant – who is supposed to protect C. – neglects his role so much that the two brothers lose their roof and at the same time their orientation.
This disturbing story is detailed in a recent Superior Court ruling.
La Presse announced this earlier this year Public Curator’s wards are homeless, sometimes for years. In response to our investigation, Quebec Public Curator Julie Lavergne-Baillargeon and Family Minister and Head of Public Curator Mathieu Lacombe had agreed on a “loophole” in the system that they had pledged to correct.
This time reference is made to the curator’s “carelessness” in managing the brothers’ fortune.
Once they had ended up in the lives of the two men, the curator quickly realized that the niece no longer wanted to get involved in the management of the foundation. And that neither C. nor J. were able to do that.
The fact that the two brothers are the owners of the house is then “taken for granted” by the curator, Judge François Duprat specified in his decision.
Her life falls apart
In October 2016, the life of the two brothers collapsed. A representative of the city of Châteauguay informs them that their house is being sold for non-payment of municipal taxes. The building was sold to a third party for $130,000.
The notice of sale for taxes was never sent to the brothers or the public trustee as the niece is on the register as the owner of the property.
In early 2017, the curator became a trustee. Six months later, he exercises his statutory right of withdrawal and pays $143,000 to get the house back. During this time, the brothers were able to remain in the building but had to pay the new owner $1,100 a month in rent.
According to the verdict, the curator tried to argue that the two brothers did not suffer from the situation.
But when the case was heard earlier this year, a special education teacher and a social worker came to say otherwise.
“The situation was difficult for the two brothers […] They didn’t understand what was going on,” the social worker explained.
Selling the house forced the two brothers to pay rent. They had to make cuts in buying clothes, trips and expenses.
A Curateur representative even mentioned the idea of reducing their grocery bill. J. also switched to C. more often depending on the situation.
The conservator contended that J. was a victim of sexual abuse and that it was rather this that frightened him. Sexual abuse does not detract from the brothers’ suffering from the sale of the home, the court told the curator.
The trustee attempted to recover from the niece the losses suffered after the redemption transaction — approximately $38,000 — alleging that he had acted negligently in fulfilling his mandate as trustee. However, he failed to get the money back.
Here the state agency decided to sell the house – and evict its own wards – and was unable to recoup the losses suffered due to what the judge called their own “carelessness”.
The court sees this as a “conflict of loyalty”. The conservator demands that C. must be transferred to a housing resource in any case.
“There is a serious conflict of loyalties for the curator. It is unthinkable for the court that the trustee could claim to protect the interests of the two brothers by bringing a lawsuit against them aimed at evicting them from the apartment and allowing him to reconcile To repay the majority of his debts, which consists of his own negligence in the management of C. and J.’s assets, the magistrate writes. Let us add that the curator obviously has to act to protect C’s person and property.”
The conservator tried to determine that it was in J. and C.’s interest not to live in the house anymore. The agency summoned a social worker who had just entered C’s life to testify, who claimed that C could neither live independently nor rely on her brother for a caregiver.
Curator’s evidence shattered
However, the testimony of the new social worker in the file was contradicted by two health workers who had cared for C. for much longer.
The intervention team of the intensive home surveillance is present for C. every day and everything is prepared so that he can stay in the dormitory, explained a specialist teacher who has known him for 20 years. Incidentally, it was C.’s will to indicate this educator from experience at the hearing.
The statement of the state curator was “seriously shaken” by the statement of this specialist teacher, the court stated.
A social worker who has known C. for 10 years also undermined the curator’s evidence. A placement of C. was never an option before the sale of the apartment was mentioned, she explained.
The two brothers want to stay in the residence and of course be together. Currently, this desire is in her interests and the curator fails in her attempt to determine that C. needs to be placed in a resource.
Excerpt from the judgment of the Supreme Court
The curator also failed to convince the court that the apartment could not be kept by the two brothers. “Before the residence was sold for unpaid taxes, no one seems to have considered such an action,” the judge said.
At the conclusion of the trial, the court ordered the trustee to pay the two brothers just over $50,000, including approximately $10,000 each in damages caused by his negligence.
PHOTO HUGO-SÉBASTIEN AUBERT, LA PRESSE ARCHIVE
I Patrick Martin-Ménard, lawyer for brothers C. and J.
“It was a huge stress for her, the possibility of losing her house; the only thing they had left of their mother and the only living environment they knew,” says Me Patrick Martin-Ménard, who represents the two brothers.
C. and J. are now relieved not to be “uprooted”, says the lawyer.
“If C. had been placed in a resource against his will – with everything we know about those resources; its sometimes incomplete nature and unsuitable for the particular needs of vulnerable people – it is clear that it would have suffered irreparable damage,” continues Me Martin-Ménard. In the attorney’s eyes, “It is extremely disturbing to see that the conservator can relinquish management of a house until it is sold for unpaid taxes”.
The curator answers
The Public Trustee will not appeal “on humanitarian grounds.” In an interview with La Presse, its director of legal affairs, Me Dominique Carrier, believes that the curator has not engaged in a “conflict of loyalties” but rather a “conflict of interest”. In order to preserve C.’s legacy, the curator “had no choice but to get into such a situation,” explains the lawyer. These three roles (legal representative, trustee and creditor) have always been transparently disclosed to the court, assures Me Carrier.
The curator realizes that he could have acted faster to avoid losing the building. However, the lawyer explains that it is “financially difficult to keep the two brothers at home” because their income is insufficient. That’s why the curator decided to sell it, she argues.
“We’re not here to break up families,” says Dave Lépine, curateur public’s interim general director for personal services. The recommendations of the CLSC treatment team and the brothers’ financial insecurity guided their decision, he says. Mr Lépine insists on the “extraordinary” nature of the situation.
“Should such an exceptional situation occur again, we will pay special attention to it. For all the people we represent, it is their interests and respect for their rights and autonomy that guide us,” assures Me Sophie Gravel, Secretary General and Head of the Office of the Public Trustee.
*A court order prohibits us from naming them. In the judgment of the Superior Court, the two brothers are identified with the letters C. and J.
Main causes of disability among adults represented by the curateur public
- Intellectual disability: 41%
- Insanity: 30%
- Degenerative diseases: 21%
- head trauma: 3%
- Other: 5%
Source: Curateur public du Quebec
Learn more
13,005 Number of people in Quebec who are under Board of Trustees or Public Custody. For example, the trustee may be required to only manage the assets of a beneficiary who is deemed unable to manage their money. In more serious cases, the curator can be called upon to make all decisions affecting his person.
Source: Curateur public du Quebec
37,236 Number of persons whose files are managed by the curateur public. In most cases the beneficiaries are privately insured, in which case the family members take care of their situation, occasionally with the support of the curateur public.
Source: Curateur public du Quebec