MT v J-YT: Injustice Measured in Economic Terms

Le Patrimoine Familial

In Québec, the family patrimony is established immediately upon marriage or civil union of two persons. The principle behind the family patrimony is that a marriage creates an equal legal and economic partnership between two individuals; therefore, when their partnership ends – whether by divorce, separation, annulment or death – they are entitled to an equal share of the patrimony. The property that composes the patrimony includes all residences used by the family, the furniture furnishing these residences, the motor vehicles used for family transportation, and the rights accrued in a pension plan during the marriage. (Click here for more information about the family patrimony.)

The Facts

In MT v J-YT, [2008] 2 SCR 781, the appellant, M.T., and the respondent, J.-Y.T., had lived together for seven years and were married for twelve subsequent years. J.-Y.T. was a judge of the Court of Québec, and participated in the pension plan for the judges of that court. When his marriage to M.T. broke down in 2004, J.-Y.T. sought to exclude the benefits from his pension plan from the family patrimony which would result in an unequal partition.

The Law

Article 422 of the Civil Code of Québec, LRQ, c C-1991 [CCQ] provides:

422. The court may, on an application, make an exception to the result of partition into equal shares, and decide that there will be no partition of earnings registered pursuant to the Act respecting the Québec Pension Plan or to similar plans 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.

The Position of the Respondent

J.-Y.T.’s submissions on why his pension plan ought to be excluded from the family patrimony were that the marriage to M.T. was his second one, and there was a significant (22 year) age difference between them. He argued that he, being 64 years of age, would have to postpone his retirement in order to rebuild his retirement income if the pension plan was included in the patrimony. By contrast, M.T. was 42-years-old, independent and employable, and would be able to save for her retirement over the following 23 years. Also, J.-Y.T. had been the sole contributor to the family patrimony, while M.T. had attended school and worked in part-time or temporary jobs. Moreover, J.-Y.T. had funded M.T.’s university studies as she pursued a master’s degree. At the time of divorce, M.T. was about to begin her doctoral studies in another city; J.-Y.T. paid for her moving expenses and provided a large sum of money that would support her throughout the first year of her doctorate. Thus, he argued, equal partition would result in an “injustice”.

The Lower Courts

The trial judge denied J.-Y.T.’s application for an unequal partition, stating that the circumstances of the case did not justify unequal partition as provided by law. Any injustice to J.-Y.T. would result solely from the application of the law, and this was insufficient grounds to allow an exception to the rule of equal partition.

The Québec Court of Appeal allowed the appeal and ordered unequal partition of the family patrimony. The court considered and accepted each of J.-Y.T.’s submissions that an equal partition would result in an injustice within the meaning of art. 422. The court emphasized the serious consideration that must be given to the age difference between the parties, particularly when one was nearing retirement. Although none of the submissions taken individually would justify unequal partition, considered as a whole, the court found that equal partition would result in an injustice.

The Decision

The main issue before the SCC was the interpretation of art. 422 CCQ, which authorizes the court to order unequal partition in specific circumstances. More specifically, the court was concerned with determining the precise nature of the “injustice” that could justify a judge’s order for the unequal partition of a family patrimony.

In answering this question, the SCC found that “a liberal interpretation conferring broad discretion on a court would jeopardize the principle of equality that is central to the law” (para 20). It was clear that the legislature viewed marriage to be not simply a union of persons, but an economic union to which both spouses must contribute to family life to the best of their ability. No distinction is made based on the nature or size of contributions; as long as the parties contribute toward the expenses of the marriage “in proportion to their respective means” (art. 396 CCQ), such contributions are presumed to be equal. Indeed, the law recognizes that different individuals may have significantly different incomes, and accordingly permits spouses to “make their respective contributions by their activities within the home” (para 22).

Looking at art. 422, a court may order unequal partition in cases where equal partition would result in an “injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the partners, or the bad faith of one of them.” While this list of factors is not exhaustive, neither is it open-ended. What is relevant is whether the spouses, during the course of their marriage, contributed, either in property or in services, as best as they could, thereby helping to form and maintain the family patrimony and treating the family life as a financial partnership. The kind of conduct committed by one spouse that would entitle the other to an unequal partition must have a clear connection to the family patrimony: “they must, in a word, be in the nature of economic faults” (para 28).

Applying the principles governing the interpretation of art. 422 to the facts of the case, the SCC ruled that the factors considered by the Court of Appeal did not justify unequal partition. While the parties’ contributions to the family patrimony were unequal, this was acceptable by law and there was no evidence of bad faith on the part of M.T. Both parties had “contributed towards the expenses of the marriage in proportion to their respective means”, and the fact that their contributions were vastly different in value did not constitute an injustice in the meaning of art. 422.

The SCC also found that the age difference did not result in injustice in the circumstances, as the age discrepancy between the two parties did not affect M.T.’s ability to contribute to the family patrimony and the appellant’s age in itself cannot be used against her to ground a finding of “injustice.”

The Last Words

One cannot but feel sympathy for a person who, undoubtedly, was looking forward to his retirement and must postpone it as a result of the dissolution of his marriage. However, the laws governing the division of property upon divorce have developed over several decades in order to protect the more economically vulnerable spouse. One may pity the man, but the law must be applied as it stands.