Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

(Publication ban in case) (Publication ban on party)

Family law - Divorce - Family assets - Partition of family patrimony - Article 422 of Civil Code of Québec, S.Q. 1991, c. 64, allowing exception to rule of partition of spouses’ family patrimony into equal shares “where it would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them” - Whether Court of Appeal changed basic rules for partition of family patrimony into equal shares - Whether, in interpreting art. 422 C.C.Q., Court of Appeal went against trend in case law concerning partition of family assets - Whether Court of Appeal exceeded its power to intervene.

The Appellant and the Respondent separated after 7 years of cohabitation and 12 years of marriage. They had no children and were 42 and 64 years old, respectively, at the time. The Respondent applied for partition of the family patrimony into unequal shares to exclude his accrued earnings in his pension plan. On the separation date in July 2004, the actuarial value of the pension fund was $1,066,520. If the patrimony was partitioned into equal shares, the Appellant would receive $396,500 and the Respondent would be left with $670,019, since a portion of the fund acquired before the marriage could not be partitioned. The trial judge concluded, on the basis of the case law, that the fact that the Respondent had been married once before, the age difference and the Respondent’s almost exclusive contribution to the family patrimony did not justify ordering partition into unequal shares. Nor, in his opinion, was such an order justified by any other ground set out in art. 422 or analogous to those grounds. The Appellant was therefore awarded half of the partitionable portion of the Respondent’s pension fund, $13,433.50 in an RRSP, $29,958 from the partition of the other assets in the family patrimony, $10,000 of which had been advanced during the proceedings so she could furnish her home, and $3,238.40 in interim costs. The Appellant could keep all the support she had received from November 2004 to February 2006 ($38,000), but she waived support for the future. The judge refused to award the Appellant a lump sum because her future financial security was assured by the partition of the Respondent’s pension plan.

The Court of Appeal intervened on the basis that the trial judge had misapplied the rules on art. 422 developed by the courts. Taking account, as a whole, of the Respondent’s greater contribution to household expenses and the family patrimony, the fact that he had been married once before, the age difference between the parties and their financial situation, the Court set aside the trial judgment to exclude the pension fund from the partition. The Appellant was thus deprived of nearly 90 percent of all the assets to which she was entitled under the rule of partition into equal shares.