B.C. mother ordered to pay disabled son $441K in withheld settlement money

The mother of a disabled man has been ordered by the B.C. Supreme Court to pay him $441,700 in funds he was entitled to under a settlement.

In a judgment posted Tuesday, Justice Anthony Saunders said Claire-Laura Whitson breached her fiduciary duties to her son Justin.

Justin, 33, suffered significant injuries at birth, according to the judgment. His mother and father, lawyer Dwight Whitson, won a settlement against the doctors and hospital who were involved.

Under the settlement's terms, Justin was entitled to monthly payments until he was 30, as well as lump sum payments at the ages of 19, 25 and 30.

However, the court found that Claire used the settlement money for her own purposes — which included purchasing scratch cards and gambling at casinos — while Justin was in her care.

The judgment also said the mother inflicted "terrible emotional and verbal … and physical abuse" toward her son, and routinely took money from Justin apart from the settlement.

"[Claire] misappropriated Justin's trust funds for her own use, and failed to account," the judgment reads.

In 2017, Justin took his mother and the Public Guardian and Trustee of B.C. (PGTBC) to court, asking for the money he was owed from 2008 — when he turned 19 — until May 2015.

Claire now has severe dementia, according to the judgment, and in September 2018 her estate was made the responsibility of the PGTBC, a government corporation that administers financial affairs for those who lack the legal capacity to do so.

It typically takes over responsibilities on behalf of those found incapable when there are no others available, capable and willing to take over the affairs, such as a relative.

In this instance, the Public Guardian arranged for an independent counsel to act as Claire's litigation guardian.

The PGTBC was also listed as a defendant in the case, with Justin accusing the corporation of breaching their duty of care to him.

Under the original settlement, the PGTBC monitored Claire's use of Justin's funds. The judgment did not specify why. 

When they noticed irregularities in Claire's accounts, the PGTBC tried to become the sole trustee for those funds. However, they were unsuccessful, and a judge ruled they no longer had to monitor Claire's management of the funds going forward.

In the current case, the court ruled that the PGTBC was under no obligation to advise Justin of the payments he was owed.

"The Public Guardian and Trustee considers this matter to have been decided by the Court and the published reasons for judgement speak for themselves," a spokesperson for the Public Guardian told CBC News.

"For reasons of personal privacy, we are unable to comment on any specific issues involving the judgment."

CBC News has contacted both Claire's and Justin's lawyers for comment but has yet to receive a reply.

Father attempted to take custody

The court heard how Claire and Dwight separated in 1998. According to the judgment, Justin's father acknowledged that the money from the settlement had been used for family income purposes.

Neither Dwight nor Claire told their son he was entitled to large sums of money after he legally became an adult at age 19, according to the judgment.

It took until June 2015 for the outstanding funds to start being directly transferred to Justin, which came about after father and son began talking to each other again after a long period of estrangement.

The court also heard other instances of Claire taking money from Justin, including in August 2006, when she stole $300 from his earnings at army cadet camp, when he was 17. That led to him moving in with his father for a short period of time, according to the judgment.

Despite Dwight indicating to the PGTBC that he would assume custody over his son shortly after that incident, he ultimately did not, and Justin went back to live with Claire.

That incident was listed as one of the mitigating factors in dismissing Justin's claim against the Public Guardian.

"Given the understanding that Justin's interests were being safeguarded by his father, and that his father was in a position to do so, the circumstances did not create sufficient proximity between Justin and the PGT, to create a duty of care," reads the judgment.

In the judgment, Saunders said given a likely "pattern of theft" perpetuated by Claire, he would not be adjusting the money she owed Justin, and her estate would have to provide the entire amount that was issued under the settlement.