M.B. c. D.B., 2017 QCCS 37
01/06/2017 17:05
no. de référence : 500-14-050610-161
M.B. c. D.B.
2017 QCCS 37
JB3984
SUPERIOR COURT
(Civil Division)
CANADA
PROVINCE OF QUEBEC
DISTRICT OF
MONTREAL
No:
500-14-050610-161
DATE:
JANUARY 6, 2017
______________________________________________________________________
IN THE PRESENCE OF
THE HONOURABLE
GUYLÈNE BEAUGÉ, J.S.C.
______________________________________________________________________
IN THE MATTER OF THE ESTATE OF THE LATE J. B.
M. B.
Applicant
v.
D. B.
Respondent
and
CURATEUR PUBLIC DU QUÉBEC
and
OFFICIER DE LA PUBLICITÉ DES DROITS PERSONNELS ET RÉELS MOBILIERS
Mis en cause
JUDGMENT
on an Application for Safeguard Order
[1] The late J. B. died in Montreal on November 4, 2016, leaving two daughters: the Applicant M. B. and the Respondent D. B..
[2] At the time of his death, the late Mr. B. had been under a regime of curatorship for almost five years[1]. Over that period, the designation of the curators to his person and to his property had varied:
• On December 1, 2011, the Court designated the Respondent as curator to Mr. B.’s person and property[2];
• On December 19, 2012, the Court designated the Respondent as curator to Mr. B.’s person, and on an interim basis, replaced her by Le Curateur public du Québec (CPQ) as curator to his property[3];
• On April 24, 2014, the Court maintained the Respondent as curator to Mr. B.’s person under four conditions, and maintained the CPQ as curator to his property[4];
• On June 21, 2016, the Court removed the Respondent pending the trial on the merits, and designated the CPQ as curator to Mr. B.’s person, while maintaining the latter as curator to his property[5];
• On September 12, 2016, the Court renewed the above interim designations[6].
[3] The late Mr. B. had left a notarized will executed on October 23, 2009. Pursuant to this last will, the Applicant and the Respondent are the only two universal legatees in equal parts, and the latter is appointed liquidator of the estate. Unfortunately, the two sisters are engaged in a long and acrimonious litigation that started in 2011 over the care of their father and the administration of his property while he was still alive.
[4] On the merits, the Applicant is seeking the removal of the Respondent and designation of a third party as the liquidator of the late Mr. B.s’ estate for the following reasons:
- The liquidation and partition of the estate should be simple and straightforward since the CPQ has been managing Mr. B.’s assets, filing his taxes for more than 4 years, and presumably has made an inventory;
- The Respondent has demonstrated that she lacks the qualities required of a liquidator by the Civil Code;
- The Court has found the Respondent to be incapable of acting as curator to Mr. B.s’ property and has removed her: namely Justice Danielle Mayrand had found that the Respondent could not account for about $23,000, and that she had failed in her duties as curator to Mr. B.’s property;
- The Court has found that the Respondent has acted in a vexatious fashion in matters involving Mr. B., the CPQ and the Applicant, and has demonstrated animus against them, which shows that she is unable to cooperate with them as required of a liquidator;
- The Respondent having issues with the services rendered by the residence where the late Mr. B. had lived had ordered not to pay the rent, but now would be involved in a litigation before the Régie du logement;
- The Respondent is indebted towards the Applicant because of unpaid judicial costs in the amount of more than $20,000;
- The Respondent has demonstrated repeated disregard for the law, having violated court decisions ordering her to put Mr. B.’s former residence on the market, and to pay judicial costs.
[5] The Applicant is asking the Court to intervene immediately with the issuance of a safeguard order designating a neutral party as a provisional liquidator. She argues that the Respondent has tenuous ties in Québec. She adds that the Respondent’s history of managing the assets of the late Mr. B. is suspect since she has misappropriated funds in the past, and yet she would now be in a position to obtain control over them. As a matter of fact, she has already requested that the CPQ hands her over the management of same. The Applicant concludes that the appointment of a provisional liquidator would prevent serious and irreparable harm.
[6] The Respondent contests the Application. She claims that several facts alleged in support of the Application are false, as she will be able to prove at trial. She pleads that her father’s wish that she acts as the liquidator is sovereign and shall be upheld. She explains having moved rapidly after the opening of the estate because her function as liquidator involves the compliance to delays provided in the Civil Code. In any event, she adds that she could not do any damage since the CPQ refuses to give her access to Mr. B.s’ assets in light of the litigation. Subsidiarily, the Respondent suggests to freeze the assets of the late Mr. B. pending the trial on the merits.
[7] A safeguard order is a discretionary judicial measure, issued for conservative purposes, in an emergency situation, for a limited period of time and with respect to an incomplete file. It is pronounced only in urgent cases. The four following criteria need to be met: urgency, color of right, irreparable harm, and in case of a doubtful right, the balance of inconvenience. The safeguard order therefore aims at avoiding evident, imminent and irreparable harm.
[8] The Court finds that the matter requires the issuance of the safeguard order requested.
[9] The late Mr. B. died on November 4, 2016. On November 7, the Respondent already sent the following letter to the CPQ:
[…]
I sent you a fax earlier this morning asking you to provide me with all information regarding the turnover of all my father’s file and property to me.
Your phone call this morning is offensive. As your agency organized and authorized the killing of my father, I do not want you or anyone at your agency to have anything to do with him or my family anymore and certainly not his funeral. STOP interfering in our lives, your role is over in the destruction of this family.
Send IMMEDIATELY all information regarding the transfer of my father’s paper file and property to me at:
[…][7].
[10] On December 14, the Applicant served the Respondent with her Application to remove her as the liquidator. Yet, on December 18, the latter sent the following letter to the CPQ, ignoring the pending court procedures:
[…] According to Public Curator Act article 41, with the end of your administration you shall render account and transfer the property to the liquidator.
By his last will my father nominated me as liquidator of his estate. I confirm that I am the liquidator of my father’s estate and I accept my duties.
On November 7, 2016, I requested your office transfer my father’s estate and associated documents to me. Your office failed to render account and transfer my father’s property to me.
On December 14, 2016, I requested a second time the transfer of my father’s estate and sent to Monique Jutras proof of my position as liquidator […]. Your office continues to refuse to render account and remit my father’s property to me […].
This is my third request for you to comply with your legal obligation to remit to me the estate balance as well as a final rendering of account of your administration. Your stalling and refusal to obey the laws of Quebec is impeding my legal responsibilities and causing me grave prejudice as you are now blocking my ability to carry my legal duties as liquidator, some of which must be completed by January 1, 2017. Time is of the essence. Your full cooperation is therefore requested. […][8]
[11] The above letters are an indication of the Respondent’s intent to be remitted Mr. B.’s assets, regardless of the pending court procedures. And given the prima facie evidence of the Respondent’s suspicious behaviour, as well as the conclusions to which judges of this Court have come in the matter of the management of those assets, it is urgent to appoint a third party as a liquidator to prevent a serious financial prejudice to the estate.
[12] As for the colour of right, a liquidator has a serious responsibility and is accountable to the heirs. Here, at first sight, it is unlikely that the Respondent will cooperate with her sister or the CPQ in the liquidation of the estate. As an example, she believes that the CPQ orchestrated her father’s death, and she did not even mention the Applicant in the obituary at the funeral.
[13] The criteria of the risk of serious and irreparable harm also favors the Applicant. The uncontested prima facie evidence shows that the Respondent would have misappropriated some funds while she was managing her father’s assets. The Court specifies that it does not decide on the merits; however there is sufficient prima facie evidence to justify the issuance of a safeguard order.
[14] Finally, even if it is not needed to analyse that criteria in the presence of a colour of right, the Courts finds that there is no inconvenience in appointing a third neutral person as a provisional liquidator. That person will be able to cooperate with the CPQ and deal with the matter before the Régie du logement. The Court is satisfied that the two practitioners suggested by the Applicant are impartial since they are unknown to the latter or her attorneys.
FOR THESE REASONS, THE COURT:
[15] GRANTS the Application for Safeguard Order;
[16] DESIGNATES Me Eliane Touchette Dansereau, notary, as the provisional liquidator of the estate of the late J. B., until final judgment is rendered on the Application to Remove the Designated Liquidator of an Estate;
[17] ORDERS the Officier de la publicité des droits personnels et réels mobiliers to strike the name of D. B. as liquidator of the estate of the late J. B.;
[18] COSTS TO FOLLOW.
__________________________________
GUYLÈNE BEAUGÉ, J.S.C.
Me Marie-Pier Durand
Me Geeta Narang
Narang & Associés, s.e.n.c.
Attorneys for Applicant
Ms. D. B.
Respondent
Self-represented
Date of hearing:
January 4, 2017
[1] Judgment by the Honourable Louis-Paul Cullen, J.S.C, dated December 1, 2011.
[2] Idem.
[3] Judgment by the Honourable François Duprat, J.S.C.
[4] Judgment by the Honourable Danielle Mayrand, J.S.C.
[5] Judgment by the Honourable Anne Jacob, J.S.C.
[6] Judgment by the Honourable Pepita Capriolo, J.S.C.
[7] Exhibit P-42.
[8] Exhibit D-6A.