2024 QCCS 85, 2024 QCCS 85

A.D. and G.C. 2024 QCCS 85 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No.: 500-14-062743-224 DATE: January 15, 2024 _____________________________________________________________________ BY THE HONOURABLE dominique poulin, j.s.c. _____________________________________________________________________ A. D. Applicant and G. C. Concerned person and P. L. and R. L. and S. C. and ST. L. Interested persons and LE CURATEUR PUBLIC DU QUÉBEC Impleaded party and AN. CH.

Intervening party _____________________________________________________________________ JUDGMENT (Institution of tutOrship and appointment of tutorship council MEMBERS) _____________________________________________________________________ OVERVIEW [ 1 ] The Applicant is applying for the institution of tutorship for the protection of her uncle and requests that she be appointed as his tutor. [ 2 ] The Court grants the application and also appoints the tutorship council members. ANALYSIS 1. THE INSTITUTION OF TUTORSHIP and the appointment of Mrs. A.

D. as tutor [ 3 ] It is not contested that the concerned person necessitates protection as regards his person, the administration of his patrimony and the exercise of his civil rights. [ 4 ] In fact, the concerned person is incapable of caring for himself and to administer his property, caused by his severe neurogognitive disorder, as is eloquently established by the medical report of neuropsychologist Anik Guimond [1] and the report of social worker Kyle Goldman. [2] [ 5 ] The evidence convinces that a tutor needs to be appointed to represent the concerned person in the exercise of his civil rights, to administer his property and to care for his person. [ 6 ] The Court has heard the testimony of the Applicant and is convinced that she cares for her uncle and that she is fully reliable to

act as his tutor to represent him. [ 7 ] Her appointment is not contested. The Court heard the testimony of six family members susceptible of forming the family council, who all support her designation. The Intervening party does not contest the appointment. [ 8 ] The concerned person also clearly confirms that the applicant would be well designated to see to his need. He sees her as his own daughter and loves her with paternal love.

He ironically states that he trusts her more than he trusts himself. [ 9 ] The appointment of the applicant is also supported by the social worker, who is of the professional opinion that the Applicant has the concerned person’s best interest at heart and that she will continue to ensure that his rights are protected and his needs are met. [3] [ 10 ] The decision to institute tutorship and to appoint the Applicant as tutor to represent the concerned person is in his best interest, respects his rights and takes into account his wishes and preferences. [ 11 ] The Court is satisfied that the conditions set forth by articles 256 to 258 C.C.Q. are met. 2.

THE NATURE, TERMS AND CONDITIONS OF THE TUTORSHIP [ 12 ] The Court is not bound by the application (article 268 C.C.Q.).

It may appoint a tutor to the person and to property, or a tutor either to the person or to property. [ 13 ] In this matter, it is not contested and it is supported by the expertise reports that it is in the interest of the concerned person, in the respect of his rights and in the safeguard of his autonomy, that a tutor to both person and to property be appointed. [ 14 ] The tutor will be responsible for the concerned person’s custody and maintenance and for ensuring his moral and material well- being, taking into account his condition, needs and faculties and the other aspects of his situation.

The tutor will need to maintain a personal relationship with the person of full age, involve him in the decisions made in his regard and keep him informed of those decisions, so far as possible (article 260 C.C.Q.). [ 15 ] The Court should decide on the rules of the tutorship regarding the capacity of the concerned person in light of his faculties (article 288 C.C.Q). In general, the same rules as the ones pertaining to the civil rights of a minor apply, adapted as required (article 287 CCQ).

Those rules are found at articles 208 and following of the Civil Code of Quebec . [ 16 ] Articles 208 and 286 C.C.Q. provide that the tutor is charged with simple administration of the property of the concerned person.

Article 213 C.C.Q. provides that before alienating an immovable, the tutor shall obtain the authorization of the tutorship council and of the Court, is the property is worth more than $ 40 000. [ 17 ] Those rules are appropriate and applicable to the situation of the concerned person. [ 18 ] The Court underlines that it finds important, in the safeguard of the autonomy of the concerned person, that what is recognized as a residual capacity in the social worker’s report be included as a modality of the tutorship. [ 19 ] In this respect, the Court will declare that the concerned person can participate in simple decision-making and express his opinions in regards to his person.

The social worker is of the opinion that the concerned person can express his choices and opinions, and he is encouraged to do so. [4] [ 20 ] The Court also needs to specify that the concerned person will not retain the administration of the proceeds of his work or revenues (article 289 C.C.Q.). The medical report establishes the concerned person’s incapacity when it comes to financial management. [5] [ 21 ] The Court finds that a time limit of 5 years for the reassessment of the concerned person’s situation is reasonable, as recommended by the social worker [6] (article 278 CCQ). 3.

The establishment of the tutorship council [ 22 ] The parties have asked that the Court appoints the tutorship council members. [ 23 ] The role of the tutorship council is to supervise the tutorship (article 222 C.C.Q.). [ 24 ] Applicant is making an application to the Court for the establishment of a tutorship council and is seeking an order that the Intervening party be excluded. [ 25 ] Six family members were called before the Court and testified.

Three need to be identified as members of the Tutorship council and two as alternates (article 228 C.C.Q.). [ 26 ] The following family members are identified by the Court as forming part of the family council: Sophie Constantopoulos Destounis, the concerned person’s sister, Aikaterini Makris, the concerned’s person other niece and Sophia Makris, the concerned person’s grand niece, incidentally a lawyer. [ 27 ] The following two family members will be alternates: P. and R. L., the Applicant’s sons, I.

P., the concerned person’s other grand niece. [ 28 ] The Court does not believe that it is indicated to include the Intervening party as a member of the family council.

[ 29 ] The Intervening party was part of the concerned person’s life for the duration of approximately two years. She is presently party to a litigation opposing her interests to those of the concerned person. The Intervening party has not shown to the Court how it would be in the concerned person’s interest that she be a member of the family council and the concerned person has specifically mentioned that he does not want her to be involved in his life. [ 30 ] There also exists a litigation between the Intervening party and the Applicant.

The Intervening party invokes that the concerned person was kidnapped away from her, has been lied to and manipulated against her.

The Applicant invokes that the Intervening party defrauded the concerned person and amassed over two million in property from him over the couple of years she was around him. [ 31 ] Seeing the condition of the apartment of the concerned person before he was taken under the protection of the Applicant, [7] the Court has no reason to question the motivations of the Applicant and the reason of her prompt intervention. [ 32 ] The Court furthermore believes that placing the Intervening party on the tutorship council would paralyze its functioning, considering the lengthy process to obtain the present judgment, which the Court attributes for the major part to her involvement in this Court file. [ 33 ] As for the request of the Intervening party to be communicated the documentation regarding the administration of the property of the concerned person, the Court is of the view that the provisions of the Civil Code of Quebec provide for all due protections regarding the execution of the role of the tutor and that whatever protection the Intervening party is suggesting that she could provide is unnecessary.

FOR THESE REASONS, THE COURT: [ 34 ] GRANTS the application; [ 35 ] DECLARES that the concerned person, Mr. G. C., is incapable of taking care of himself and administering his property; [ 36 ] ORDERS the institution of tutorship in favour of the concerned person; [ 37 ] DESIGNATES the Applicant, Mrs. A.

D., as the tutor of the concerned person, to represent him in the exercise of his civil rights, to administer his property and to care for his person. [ 38 ] DECLARES that the concerned person can participate in simple decision-making and express his opinions in regards to his person; [ 39 ] DECLARES that the concerned person will not retain the administration of the proceeds of his work or revenues; [ 40 ] APPOINTS the tutorship council members as follows: Mrs. S. C., Mrs. Ai. M. and So. M., being understood that the following family members are designated as alternates: Mr. P. and Mr. R. L., Mrs. I.

P.; [ 41 ] THE WHOLE without costs. __________________________________ DOMINIQUE POULIN, J.S.C. Me François Beauvais FRANÇOIS BEAUVAIS AVOCAT INC Counsel for the applicant Me Lan N. Au INEX LEGAL Counsel for the concerned person Me Philippe Lord Counsel for the intervening party Hearing date: January 8, 2024