Summary

Keywords

Family law – Family patrimony – Family residence – Declaratory judgment – Whether the family patrimony includes a family residence, or “right that confer use” of it, when the said family residence is owned by a discretionary trust that is controlled by one of the spouses, under art. 415 C.c.Q. – When the court determines that a spouse holds “rights which confer use” of a family residence in accordance with art. 415 C.c.Q., what are the applicable criteria to assess whether the value of such rights equates to the value of the family residence? – Civil Code of Quebec, art. 415.

Summary

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The respondent, Mr. Roger Karam and the late Mrs. Taky Yared were married on July 25, 1998 in Beirut, Lebanon. Four children were born out of their marriage. In August 2011, Mrs. Yared learned that she had cancer and the same year, the family moved to Montreal. In October 2011, a family trust was constituted and Mr. Karam was named as both co-trustee along with his elder mother and sole “Electeur” of the trust which gave him discretionary power notably to name and replace the initial beneficiaries of the trust and to determine how the capital and revenue of the trust would be divided among the beneficiaries. On June 18, 2012, the family trust purchased a property that would serve as the family residence at the cost of $2,350,000.00. On June 12, 2014, Mrs. Yared left the residence and she served divorce proceedings upon Mr. Karam on July 2, 2014. She died on April 6, 2015 while still married to Mr. Karam. A few months before her death, in August 2014, Mrs. Yared executed a last Will and Testament before a Notary and appointed her brothers, the appellants, M. Ramy Yared and M. Rody Yared as liquidators of her Estate. Further, she bequeathed her entire Estate in equal portion to four separate trusts, each of them to the benefit of one of her children. On March 30, 2016, Mr. Karam served proceedings before the Superior Court to demand the annulment of the Will and Testament of Mrs. Yared. On July 19, 2016, the appellants, in their capacities as liquidators of the Estate served an application for a declaratory judgment to have the family residence declared as part of the family patrimony under the Civil Code of Quebec.

Lower Court Rulings