2012 QCCS 7184, 2012 QCCS 7184

Bouchard c. Liu (Estate of) 2012 QCCS 7184 JB 3018 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-17-063097-110 DATE: December 18, 20012 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE ROGER E. BAKER, J.S.C. ______________________________________________________________________ FRANCIS BOUCHARD and JEREMY BOUCHARD Plaintiffs v.

ESTATE OF THE LATE CONSTANCE LIU and DANY ROY Defendants ______________________________________________________________________ TRANSCRIPT OF REASONS AND JUDGMENT rendered orally on November 29, 2012 [1] ______________________________________________________________________ [ 1 ] The parties are Francis and Jeremy Bouchard, Plaintiffs, and Dany Roy, the Defendant, who is the stepfather of the two Plaintiffs and who was married to the late Constance Liu, their mother. [ 2 ] Plaintiffs have initiated these proceedings vs. M.

Roy primarily to have him declared unworthy to be a beneficiary under his late wife’s will [2] . [ 3 ] The conclusions sought in Plaintiff’s motion are the following:

a) that Defendant be declared unworthy of inheriting;

b) that Plaintiffs be declared sole universal legatees and beneficiaries of their late mother’s estate;

c) that Defendant be removed as liquidator of the estate;

d) that the RESP with the TD Canada Trust be transferred to Plaintiffs;

e) that Defendant be condemned to pay to Francis the GST payment of $225.00 and the RESP payment of $1040.00;

f) to pay to Jeremy the cash value of the Alero car–the amount of $4000.00;

g) that the Court order the Defendant Dany Roy to deliver to Plaintiffs the jewellery to which they are entitled under the will (P-2) or failing that, to pay to Plaintiffs the amount of $33,675.00. [ 4 ] Constance Liu died on August 4, 2010. Prior to her death she lived with the Defendant Dany Roy, her two sons, the Plaintiffs, and Cedric, the son of Dany Roy from a previous marriage. [ 5 ] In the last year of her life Mme Liu was stricken with an illness which left her virtually unable to communicate with her family.

She was hospitalised almost all of 2010 up to the time of her death. [ 6 ] It is alleged by Plaintiffs that the behaviour of Roy prior to and after the death of Mme Liu was such that he should be declared unworthy. THE EVIDENCE

[ 7 ] The sister of Mme Liu, Jennifer Chan, testified on many of the issues before the Court. She described her sister’s illness and hospitalisation in 2009 for a brain tumour. [ 8 ] From February 2010 until her sister’s death, Mme Chan stayed in the house with the two Plaintiffs, the Defendant Roy, and Cedric, Roy’s son. [ 9 ] She described the food situation in the house in March of 2010; she said that Roy was not cooking—let them eat sandwiches he said, referring to the Plaintiffs. [ 10 ] On August 5, 2010 she went to the bank with Dany Roy and opened the safety deposit box.

She said that they read the will, and saw jewellery given her sister by their mother. [ 11 ] She referred to the list of jewellery and the values of each piece listed in exhibit P-6 and looked at the photos to arrive at the value of her sister’s jewellery. She said that some jewellery she saw in her sister’s bedroom she compared to the list P-6. [ 12 ] She testified that after August 5, Roy started to threaten the boys that they’d have to leave the house. [ 13 ] Francis Bouchard described life at the house with Dany Roy: we co-existed. He said that at the funeral of his mother, M.

Roy told Jeremy that he could stay in the house as long as he liked. Francis then testified that M. Roy hit his computer monitor. [ 14 ] Jeremy Bouchard testified that the day after the funeral Roy told him that he’d have to find a place to stay. The testimony of Dany Roy [ 15 ] Dany Roy testified about the jewellery that was found in the safety deposit box when he was there with Jennifer Chan; she said she’d take them and give them to the children. [ 16 ] He stated that the father of the Plaintiffs, M. Bouchard, said he’d take Jeremy to live with him.

DISCUSSION [ 17 ] The thrust of Plaintiffs case against Roy is his bad behaviour towards the two Plaintiffs, prior to and after the death of their mother:

a) Roy kept two cheques in the amounts of $225.00 and $1040.00 payable to Francis;

b) he has not returned the car or its value to Plaintiffs after his wife’s death;

c) he has neither returned the jewellery to the Plaintiffs nor its equivalent value of $33,675.00 as per the list P-6. There is no credible evidence as to the existence of the jewellery or its value. [ 18 ] In respect of the claim for unworthiness, Plaintiffs assert that: ➢ Roy was cruel to the Plaintiffs and ➢ he behaved towards his dead wife in a seriously reprehensible manner. [ 19 ] It was argued in connection with Roy’s reprehensible behaviour towards his deceased wife that:

a) he took the GST cheques for Francis and has kept the funds;

b) has not transferred the RESP with the TD Bank, which has an admitted value of approximately $7500.00;

c) he made the jewellery disappear;

d) he did not pay the value of the car;

e) he created a hostile atmosphere in the house;

f) he threw the two Plaintiffs out of the house. [ 20 ] There have been the following admissions by the Defendant: ➢ he owes $225.00 and $1040.00 to Francis; ➢ he has an obligation to transfer the TD Bank RESP (P-15) with an approximate value of $7500.00;

➢ he agrees there is a responsibility for the car but cannot achieve an agreement on the value. [ 21 ] The testimony of Jennifer Chan and others as to the existence of and the value of the jewellery is fraught with uncertainty-at best, this evidence is pure speculation. [ 22 ] The evidence in respect of the behaviour of the Defendant Dany Roy is that he treated the two Plaintiffs, his stepsons, in a less than exemplary manner. Keeping monies which belonged to Francis was and is illegal. That he now admits that these funds are owing does not diminish one iota the inappropriate action by Roy.

The same can be said for the refusal to transfer the RESP from the TD Bank, as well as the car or its value; it is insufficient, as Defendant has argued that there are things which were not handed over as they were the subject of negotiation between opposing counsel. This is utter nonsense—when the head of a family confiscates funds clearly belonging to his stepchildren, he should immediately turn the funds over, which was not done. The fact that it was not done is shameful. [ 23 ] Roy behaved badly.

The real question in this case is: towards whom did he behave badly? [ 24 ] The evidence discloses that his bad behaviour was directed at the children, and not their mother. [ 25 ] Plaintiffs are attempting to achieve a finding of unworthiness towards the deceased Mme Liu by ricochet in his behaviour towards the Plaintiffs. [ 26 ]

Article 621 C.C.Q. stipulates the conditions in respect of unworthiness: 621.

The following persons may be declared unworthy of inheriting: (1) a person guilty of cruelty towards the deceased or having otherwise behaved towards him in a seriously reprehensible manner; (2) a person who has concealed, altered or destroyed in bad faith the will of the deceased; (3) a person who had hindered the testator in the writing, amendment or revocation of his will. [ 27 ] Dany Roy, on the evidence, was not guilty of cruelty towards his wife, nor did he behave towards her in a seriously reprehensible manner. [ 28 ] None of the evidence of the bad behaviour of M. Roy relates to the job as a liquidator.

FOR THESE REASONS, THE COURT : [ 29 ] GRANTS in part the amended motion to institute proceedings; [ 30 ] ORDERS Defendant Roy to pay to Francis Bouchard the amounts of $225.00 and $1040.00 immediately; [ 31 ] ORDERS Roy to effect the transfer of the TD Bank RESP within 10 business days from today’s date, failing which he is ordered to pay to Plaintiffs the amount of $8,000.00; [ 32 ] ORDERS the Defendant Roy to pay to Plaintiffs the amount of $4,000.00 as a substitute for the return of the car; [ 33 ] DISMISSES Plaintiffs’ request that Roy be declared unworthy; [ 34 ] THE WHOLE with costs against the Defendant Dany Roy; [ 35 ] This judgment is executory notwithstanding appeal. __________________________________ ROGER E.

BAKER, J.S.C. Me Irving Handelman Handelman, Handelman & Schiller Attorneys for Plaintiffs Me Guy Lemoine Geoffrion Beauchamp Lemoine Attorneys for Defendants Dates of hearing: November 26 to 29, 2012