Unequal partition of family patrimony: a question of economic injustice

Jun 14, 2022

Introduced in 1989 by the Bourassa government, the family patrimony is a legislative particularity of Quebec which aims to create a third patrimony in which the spouses invest financially in the name of an entity called “The Family”. Concretely, the Quebec legislator wanted to protect the interests of the married spouses by imposing on them the financial pooling of what was invested within the family during the union. To do this, the family residences, the property adorning them, the pension plans and funds that have been contributed to during the union, accumulated annuities, and vehicles used for family travel all make up this patrimony which is partitioned at the dissolution of marriage.

For some spouses, it may be tempting to think that the Courts will would grant a request for unequal partition of the family patrimony if their ex-spouses acted abusively or unfairly during the marriage. However, it is imperative to understand that the unequal partition of the family patrimony does not seek to remedy any “moral” injustices committed during the marriage.

Indeed, many are those who might think to ask for unequal division of the family patrimony following adultery, betrayal, or spousal violence. However, the injustice justifying an unequal division within the meaning of article 422 of the Civil Code of Québec is solely economic. The Supreme Court of Canada in M.T. v. J.‑Y.T. of 2008 crystallized the interpretation of this provision as follows:

[25] The interpretive approach to be taken in applying art. 422 must always be consistent with the objective of the family patrimony, that is, to create an economic union between the spouses. Such an approach will enable the court to determine what circumstances might result in an injustice within the meaning of art. 422. Those circumstances must be related to the success or failure of the economic partnership between the parties. It must be determined whether, by their actions or conduct during the marriage, the spouses defaulted on their fundamental obligation to contribute to forming and maintaining the family patrimony: […]

Although the squandering of property, acts of bad faith, or the short duration of the marriage is a non-exhaustive list of the reasons justifying an unequal distribution of the family patrimony, any claim in this sense must necessarily have its source in the economic nature of the family.

Thus, no adultery or deception can be compensated by an unequal division of the family patrimony. On the contrary, it will be necessary to turn to civil or criminal proceedings to obtain compensation for those damage suffered.

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Sandrine Dagenais

Associate


Sandrine joined our team as an articling student in January 2022 via the highly-competitive Course aux stages process and under the supervision of Me Ana Maria Zuluaga.

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