M.T. v. J.-Y.T., 2008 SCC 50, [2008] 2 SCR 781

                                                 SUPREME COURT OF CANADA

Between:

M.T.

Appellant

and

J.‑Y.T.

Respondent

Official English Translation

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

M.T. v. J.‑Y.T., [2008] 2 S.C.R. 781, 2008 SCC 50

M.T.                                                                                                                                    Appellant

v.

J.‑Y.T.                                                                                                                              Respondent

Indexed as:  M.T. v. J.‑Y.T.

Neutral citation:  2008 SCC 50.

File No.:  31748.

2008:  February 27; 2008:  September 25.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for quebec

Family law — Divorce — Family assets — Partition of family patrimony — Civil Code of Québec authorizing exception to rule of equal partition of value of spouses’ family patrimony where equal partition would result in injustice considering, in particular, brevity of marriage, waste of certain property by one of spouses, or bad faith of one of them — Nature of “injustice” that justifies judge ordering unequal division of family patrimony — Whether exclusion of husband’s pension credits from partition of patrimony is warranted — Civil Code of Québec, S.Q. 1991, c. 64, art. 422.

The parties, who had lived together since 1985, were married in 1992 under the regime of separation as to property.  At that time, J had been a judge since 1988 and M, after taking intensive courses in office automation paid for by J, had been a public servant since 1986.  When that job terminated in 1994, J also bore the cost of university studies pursued by M, who received a master’s degree in technical and vocational education in 2002.  The couple, who had no children, separated in 2004.  M and J were 42 and 64 years old, respectively.  At that time, M was preparing to begin doctoral studies.  J paid her moving expenses and paid her $38,000 in support during the first year of her doctorate.  The parties initiated divorce proceedings in which J asked the court to order unequal partition of the family patrimony.  He sought to exclude the benefits accrued under his judges’ pension plan during the marriage from the mass of property to be included in the partition.  The Superior Court rejected that request, but the Court of Appeal intervened, ordering that the benefits accrued under J’s pension plan be excluded from the partition of the family patrimony on the basis that equal partition would result in an injustice.

Held:  The appeal should be allowed.

The interpretive approach to be taken in applying art. 422 C.C.Q. 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.  Any causes of injustice that are ascribed to a spouse must, in a word, be in the nature of economic faults.  [25] [28]

From this standpoint, the Court of Appeal’s application of art. 422 C.C.Q. was inconsistent with the limits placed by the legislature on the courts’ power to order unequal partition.  First of all, the Court of Appeal erred in its assessment of the facts in considering J’s first marriage, since nothing in the record suggests that the first marriage had the slightest impact on the parties’ life together or on J’s financial circumstances during or at the time of dissolution of his second marriage.  Furthermore, the unequal nature of the parties’ contributions to the family patrimony does not represent a cause of injustice for the purposes of this case.  Rather, it was a foreseeable consequence of the marriage.  There is no evidence of economic fault or injustice on M’s part.  As the parties had agreed, she studied and worked, often part‑time or in unstable or temporary jobs.  Her activities in the home were also continual, and her income went to a large part — to the extent of her ability to pay — toward their life together.  Finally, the age difference between the parties and the fact that J was only a few years from the mandatory retirement age did not result in injustice either.  The parties must have accepted this situation at the start of their union.  M did nothing that would have adversely affected the integrity of the family patrimony, and her age cannot be held against her as a ground for refusing to apply the law. [29‑32]

Cases Cited

Referred to:  Stein v. Stein, [2008] 2 S.C.R. 263, 2008 SCC 35; Droit de la famille — 1893, [1993] R.J.Q. 2806; Droit de la famille — 2659, J.E. 97-963, SOQUIJ AZ-97011439; Droit de la famille — 1395, [1993] R.J.Q. 1659; Droit de la famille — 1511, J.E. 97‑302, SOQUIJ AZ‑97011138; Droit de la famille — 1907, J.E. 94‑133, SOQUIJ AZ‑94011103; Droit de la famille — 1953, J.E. 94‑552, SOQUIJ AZ‑94011386; M.G. v. A.B., J.E. 2002‑1013, SOQUIJ AZ‑50128166, aff’g [2001] R.D.F. 556; L.C. v. P.P., [2005] Q.J. No. 6555 (QL), 2005 QCCA 515.

Statutes and Regulations Cited

Act to amend the Civil Code of Québec and other legislation in order to favour economic equality between spouses, S.Q. 1989, c. 55, s. 42.

Civil Code of Québec, S.Q. 1991, c. 64, ss. 396, 414 et seq., 415, 416, 422, 423, 427, 431, 432.

Authors Cited

Brisson, Jean‑Maurice, and Nicholas Kasirer.  “The Married Woman in Ascendance, the Mother Country in Retreat:  from Legal Colonialism to Legal Nationalism in Quebec Matrimonial Law Reform, 1866‑1991”, in DeLloyd J. Guth and W. Wesley Pue, eds., Canada’s Legal Inheritances.  Winnipeg:  Canadian Legal History Project, 2001, 406.

Burman, Danielle, et Jean Pineau.  Le “patrimoine familial” (projet de loi 146).  Montréal:  Thémis, 1991.

Goldstein, Gérald, et Ethel Groffier.  Droit international privé, t. II, Règles spécifiques.  Cowansville, Qué.:  Yvon Blais, 2003.

Kasirer, Nicholas.  “Couvrez cette communauté que je ne saurais voir:  Equity and Fault in the Division of Quebec’s Family Patrimony” (1994), 25 R.G.D. 569.

Pineau, Jean, et Marie Pratte.  La famille.  Montréal:  Thémis, 2006.

APPEAL from a judgment of the Quebec Court of Appeal (Baudouin, Morissette and Hilton JJ.A.), [2006] R.D.F. 703, [2006] Q.J. No. 12193 (QL), 2006 CarswellQue 9001, 2006 QCCA 1353 (sub nom. Y v. X), reversing in part a decision of Fournier J., [2006] R.D.F. 407, SOQUIJ AZ-50359107, [2006] Q.J. No. 1840 (QL), 2006 CarswellQue 1878, 2006 QCCS 1138.  Appeal allowed.

Danielle Houle, Michèle Gérin and Marjolaine Gaudet, for the appellant.

Sonia Bérubé and Annie Tremblay, for the respondent.

English version of the judgment of the Court delivered by

LeBel J. —

I.  Introduction

[1]     At issue in this appeal is unequal partition of a family patrimony established pursuant to arts. 414 et seq. of the Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”).  Although the respondent (“J.‑Y.T.”) does not deny that his pension plan is part of the family patrimony, he successfully argued on appeal that the value of the benefits accrued under his pension plan during his marriage should be excluded from the property to be included in the partition upon his divorce from the appellant (“M.T.”).  For the reasons that follow, I conclude that sufficient grounds for unequal partition of the family patrimony did not exist and that the pension plan should have been included in the partition.  I would therefore allow the appeal and restore the conclusions in the judgment of the Quebec Superior Court.

II.  Origin of the Case  

[2]     The parties, who had lived together since 1985, were married in 1992 under the regime of separation as to property.  At that time, J.‑Y.T. was divorced from his first wife.  For M.T., it was her first marriage.  The respondent had been a judge of the Court of Québec since 1988.  The appellant, after taking intensive courses in office automation paid for by the respondent, had been working in a department of the Quebec government since 1986.

[3]     After that job terminated in 1994, the respondent also bore the cost of university studies pursued by his wife, who received a master’s degree in technical and vocational education in 2002.  The couple had no children.  Their relationship broke down in 2004.  At that time, the appellant was preparing to begin doctoral studies in another city.  The respondent paid her moving expenses and paid her $38,000 in support during the first year of her doctorate.  At the time of the separation, the respondent, who was still a judge of the Court of Québec, was 64 years old and M.T. was 42.

[4]     After the separation, the parties, who disagreed on a number of patrimony‑related issues, initiated divorce proceedings.  The main issue in the proceedings concerned the pension credits of the respondent, who was a participant in the pension plan for judges of the Court of Québec.  He asked the Superior Court to order unequal partition of the family patrimony by excluding his pension credits from the partition.  The appellant sought equal partition.  The parties disagreed on other points, but the respondent’s pension plan is the only one still in issue in this Court.

III.  Judicial History

A.   Quebec Superior Court ([2006] Q.J. No. 1840 (QL), 2006 QCCS 1138)

[5]  The judgment of the Superior Court disposed of a number of issues between the parties that we need not revisit here.  Thus, Fournier J. effected partition of the movable property in the family patrimony and denied M.T. a lump sum payable as support, but granted her a provision for costs.

[6]  In his judgment, the trial judge dealt primarily with the inclusion of J.‑Y.T.’s pension credits in the partition.  The respondent sought unequal partition of the family patrimony, which would have excluded the benefits accrued under his pension plan during the marriage from the mass of property to be included in the partition.  In support of his request, the respondent pointed out that this was his second marriage, that there was a significant age difference — of over 20 years — between him and his wife, that his wife was independent and employable, and that she would be able to build a pension fund for herself by the time she reached retirement age.  He added that if his pension credits were to be included, he would have to postpone his retirement in order to rebuild his retirement income.  Furthermore, all the property in the family patrimony had been accumulated through his effort alone.  Equal partition would therefore result in an injustice, and for that reason, J.‑Y.T. argued, the Superior Court should order unequal partition by excluding his pension credits pursuant to art. 422 C.C.Q.

[7]  Fournier J. rejected the request for unequal partition.  In his opinion, the accumulated pension credits should be divided equally, in the manner provided for by law.  The Superior Court held that the injustice J.‑Y.T. was complaining of resulted from the law itself, and that the fact situation presented to it did not justify unequal partition.  J.‑Y.T. appealed that decision to the Quebec Court of Appeal.

B.      Quebec Court of Appeal, Baudouin, Morissette and Hilton JJ.A. ([2006] R.D.F. 703, 2006 QCCA 1353)

[8]  The Court of Appeal intervened, setting aside the Superior Court’s judgment and ordering unequal partition of the family patrimony.  According to the Court of Appeal, the trial judge had applied the rules governing the family patrimony improperly by focussing his analysis on the single factor of the conduct of the parties during the marriage.

[9]  The Court of Appeal acknowledged that equal partition is the rule and that to justify an exception to that rule, an injustice cannot result solely from the operation of law.  The court considered five factors to determine whether equal partition would result in an injustice within the meaning of art. 422 C.C.Q.

[10]       The first factor was the fact that the parties had contributed unequally to household expenses and to the accumulation of the family patrimony.  Although this factor is not determinative, the Court of Appeal found that it was present but that this was understandable in light of the difference between the parties’ incomes.  The court then considered the fact that there had been a first marriage.  It also noted the age difference between the parties and stressed that serious consideration must be given to this factor, particularly where, as in the instant case, the difference is accentuated by the fact that one party is nearing retirement.  The court also discussed the question of fault and negligence on the part of the spouses and concluded that the evidence did not show this factor to be present on either part.  Finally, it reviewed each spouse’s patrimony and noted that M.T. was still 23 years away from the normal retirement age and could hope that her financial situation would enable her to retire at that time.  The Court of Appeal concluded that although none of the factors it had examined would, if considered in isolation, warrant its intervention, equal partition would result in an injustice, having regard to the whole of the record and of the five factors in issue (para. 26).  It accordingly ordered that the benefits accrued under J.‑Y.T.’s pension plan be excluded from the partition of the family patrimony.  The appellant is now challenging that conclusion in this Court.

IV.  Analysis

A.  Issues

[11]       This appeal raises two issues.  The first concerns the interpretation of art. 422 C.C.Q., which authorizes the court to order unequal partition of the family patrimony in certain cases.  That provision reads as follows:

422.  The court may, on an application, make an exception to the rule 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.

[12]                 After the first issue is resolved, it will be necessary to apply the principles governing the interpretation of that provision to the facts of this case in order to determine whether they support unequal partition, that is, whether, in practice, they justify excluding the respondent’s pension credits from the partition of the patrimony.  Before turning to these two issues, however, I feel it will be helpful to review the origin and legal structure of the family patrimony and the role this concept plays in the organization of the patrimonial relationship between spouses in Quebec civil law.

B.     Framework for the Patrimonial Relationship Between Spouses in Quebec Civil Law

[13]       The family patrimony is part of a complex set of legislative provisions whose purpose is to structure the patrimonial relationship between spouses when a marriage is entered into, during the marriage and when it is dissolved.  The legislature has made some of these provisions imperative; other measures constitute suppletive or optional rules.  These provisions are the result of a legislative process that developed over several decades.

[14]       In the law governing patrimony, a marriage has the immediate effect, under art. 414 C.C.Q., of establishing a family patrimony, and it creates a claim that can be asserted upon separation from bed and board or upon dissolution of the marriage.  The law also provides for the possibility of a compensatory allowance where one spouse has contributed to the enrichment of the other spouse’s patrimony (art. 427 C.C.Q.).  The question of the legal nature of these rights remains unresolved.  Some see them as a primary matrimonial regime, while others see them as simple effects of marriage.  This question of characterization is not in issue in this Court, although it can, in practice, be of more than theoretical interest in private international law (see G. Goldstein and E. Groffier, Droit international privé, t. II, Règles spécifiques (2003), Nos. 258‑59; J. Pineau and M. Pratte, La famille (2006), at pp. 204‑10).  This Court can resolve the legal issue presently before it without expressing an opinion on this point.

[15]       Furthermore, the legislature has provided for the adoption of a matrimonial regime by the spouses.  Under art. 431 C.C.Q., the choice of a regime and of its content is based on the parties’ freedom of contract, “subject to the imperative provisions of law and public order”.  If the spouses have not made an express choice, they are presumed, pursuant to art. 432, to have opted for the regime of partnership of acquests.  Thus, all married spouses in Quebec have, by virtue of their marriage, a matrimonial regime that they may alter, but that remains subject to imperative rules, including the rules governing the family patrimony.  I will now discuss the nature of the family patrimony.

C.  Family Patrimony and Establishment of a Principle of Equality

[16]       The institution of family patrimony is consistent with a general trend in Canada to protect vulnerable spouses.  This legislative tendency is concerned with guaranteeing a form of equality that, although perhaps imperfect, plays a significant role in the creation and dissolution of a family patrimony on terms that can vary widely (N. Kasirer, “Couvrez cette communauté que je ne saurais voir:  Equity and Fault in the Division of Quebec’s Family Patrimony” (1994), 25 R.G.D. 569, at pp. 572‑73; see also Stein v. Stein, [2008] 2 S.C.R. 263, 2008 SCC 35, at para. 25, per Abella J.).

[17]       The Quebec National Assembly passed the provisions that established the family patrimony in 1989 (An Act to amend the Civil Code of Québec and other legislation in order to favour economic equality between spouses, S.Q. 1989, c. 55).  That Act represented a partial response to the disappointment and difficulties that had resulted from the implementation of the compensatory allowance in the years prior to its enactment (Kasirer, at p. 582).  As soon as the family patrimony legislation came into force, it became a key component of the patrimonial relationship between spouses.  It applied immediately to all existing marriages, subject to the spouses’ right to waive its application by notarial declaration before January 1, 1991 (S.Q. 1989, c. 55, s. 42).  Since then, a family patrimony has been established whenever a marriage is entered into.  Article 423 C.C.Q. prohibits spouses from renouncing their rights in the patrimony before or during the marriage:

423.  The spouses may not, by way of their marriage contract or otherwise, renounce their rights in the family patrimony.

One spouse may, however, from the death of the other spouse or from the judgment of divorce, separation from bed and board or nullity of marriage, renounce such rights, in whole or in part, by notarial act en minute; that spouse may also renounce them by a judicial declaration which is recorded, in the course of proceedings for divorce, separation from bed and board or nullity of marriage.

Renunciation shall be entered in the register of personal and movable real rights.  Failing entry within a period of one year from the time when the right to partition arose, the renouncing spouse is deemed to have accepted.

[18]       A family patrimony comprises specific property from a list that includes benefits that have accrued to a spouse during the marriage under a pension plan (art. 415 C.C.Q.).  Article 416 establishes a principle of equal partition of the patrimony between the spouses upon dissolution of the marriage.  In practice, the listed property represents the principal assets of most couples.  In this appeal, the value of the benefits that had accrued to the respondent under his pension plan constituted the bulk of the family patrimony.

D.  Possibility of Unequal Partition

[19]       However, under art. 423 C.C.Q., spouses retain the right to renounce their rights in the family patrimony upon dissolution of the marriage.  If a spouse does not renounce those rights, the only limit on the imperative nature of the principle of equal partition is found in art. 422, according to which a court may order unequal partition in certain cases where an injustice would otherwise result.  The interpretation of that provision is the central issue in the case at bar.

[20]       Before art. 422 can be applied, the interpretation problem it causes must be resolved.  More specifically, it is necessary to establish the nature of the “injustice” that will justify a judge ordering unequal division of the family patrimony, “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”.  As Dean Kasirer points out, a liberal interpretation conferring broad discretion on a court would jeopardize the principle of equality that is central to the law:

Judges should be as shy to depart from the general rule of equal “partition”, as they have been under similar legislation in common law Canada, since a more active stance would render article 422 a licence for case‑by‑case review of the appropriateness of equal partition.  It would mean, in effect, a return to the ad‑hockery of the compensatory allowance which the legislature has so explicitly steered courts away from doing. [p. 583]

[21]       Although the Quebec courts have not been unanimous as regards the interpretation of art. 422, their decisions do establish certain basic guidelines.  These guidelines are structured around the very concept of marriage, as expressed in the institution of the family patrimony.  Marriage represents, first and foremost, a union of persons.  However, the legislature also wanted it to be a partial economic union or an association of interests (D. Burman and J. Pineau, Le “patrimoine familial” (projet de loi 146) (1991), No. 31).  The adoption of the partnership of acquests as the suppletive matrimonial regime that is to apply unless the spouses make another choice shows that this is what the legislature intended.  The creation of the family patrimony confirms that intention even more clearly.

[22]       Marriage results in the establishment of a form of economic union to which both spouses must contribute as best they can (Kasirer, at p. 572).  Article 396 C.C.Q. clearly imposes on the spouses a legal obligation to contribute toward the expenses of the marriage “in proportion to their respective means”.  It also provides that “[t]he spouses may make their respective contributions by their activities within the home.”  The law is not really concerned with the size or nature of the contributions, and in fact presumes them to be equal (Droit de la famille — 1893, [1993] R.J.Q. 2806 (C.A.), at p. 2809).  This presumption that contributions are equal underlies the principle of equal partition of the family patrimony on dissolution of the marriage, and it underscores the exceptional nature of the power to order unequal partition.

[23]       The first principle for the interpretation and application of art. 422 derives from the legislative rule of equality.  This is not a tool to be used to support a disagreement with the very objective of the legislation.  The injustice referred to in art. 422 cannot arise out of the existence and application of the law that establishes the family patrimony.  The adoption of the institution of family patrimony has led to sometimes heated criticism.  (Pineau and Pratte, at pp. 195 and 199; also J.‑M. Brisson and N. Kasirer, “The Married Woman in Ascendance, the Mother Country in Retreat:  from Legal Colonialism to Legal Nationalism in Quebec Matrimonial Law Reform, 1866‑1991”, in D. J. Guth and W. W. Pue, eds., Canada’s Legal Inheritances (2001), 406, at pp. 436‑37).  However, the authors agree that the injustice contemplated in art. 422 must not be an injustice that derives from the application of the law itself (see Pineau and Pratte, at p. 278).  The courts have recognized the validity of this principle (Droit de la famille — 2659, J.E. 97-963, SOQUIJ AZ-97011439 (C.A.)), which the Court of Appeal acknowledged in its reasons in the instant case (para. 18).

[24]       The second principle of interpretation is that the list in art. 422 is not exhaustive.  According to this principle, a court can intervene in cases other than those specifically referred to in that provision (see, for example, Droit de la famille — 1395, [1993] R.J.Q. 1659 (C.A.); Droit de la famille — 1511, J.E. 97‑302, SOQUIJ AZ‑97011138 (C.A.)).  The list must not be regarded as open‑ended, however, as its context is that of an institution that was created to ensure a form of economic equality between spouses.  The list does not concern a moral judgment on the spouses’ conduct during their marriage, or on their temper, ingratitude or fidelity.  Furthermore, the Quebec Court of Appeal relied on this characteristic of the list in art. 422 when it distinguished the grounds for revoking a gift from those justifying unequal partition of the family patrimony (Droit de la famille — 1907, J.E. 94‑133, SOQUIJ AZ‑94011103).  The application of art. 422 is based on the presence of factors of the same basic nature; to express this, the Quebec Court of Appeal has sometimes stated that it should be interpreted by applying the ejusdem generis rule (Droit de la famille — 1395, at p. 1663).  What now remains is to determine how to identify the factors that are likely to result in an injustice that might justify unequal partition.  However, the court must not forget that this analysis will be based on the specific facts of each case and will not be limited to a mere classification exercise based on a list of predetermined factors.

[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:

Since 1989, Quebec’s droit commun has renewed its faith in the moral postulate, consecrated elsewhere in Canada by way of the remedy of the constructive trust and the legislative schemes built thereupon, that marriage is a joint economic endeavour to which both spouses are bound to contribute as best they can.  The spouse who has not made the contribution, in property or in services, called for by the very nature of marriage has violated the fundamental economic covenant upon which marriage itself is founded.  Conduct is thus relevant at divorce but only insofar as it reveals this abuse of confidence in marriage whereby a spouse has failed to treat family life as a financial partnership.  Accordingly, the Civil Code allows a judge — presiding over a veritable civilian court of conscience — to depart from equal “partition” of the net value of the family patrimony when a spouse comes to partition with unclean hands for having failed to contribute to the joint economic endeavour.

(Kasirer, at p. 572)

[26]       In this respect, it might be asked what the words “bad faith” mean in the list in art. 422.  Once again, the concept of “bad faith”, although it is very flexible, must be interpreted in light of the general context in which it is used.  Here, it is economic in nature.  It does not relate to an assessment of morality or of the quality of the spouses’ married life (Kasirer, at p. 590).

[27]       The brevity of the marriage, which is referred to in art. 422, often has a direct economic impact.  The length of the union has an impact on the establishment and consolidation of the economic partnership.  Waste or mismanagement can also affect the content of the patrimony, or even its very existence (Droit de la famille — 1953, J.E. 94‑552, SOQUIJ AZ‑94011386 (C.A.); M.G. v. A.B., J.E. 2002‑1013, SOQUIJ AZ‑50128166 (C.A.), aff’g [2001] R.D.F. 556 (Sup. Ct.); Droit de la famille — 1395).

[28]       The court must consider the parties’ conduct and relative contributions from the standpoint of their economic impact on the family patrimony, not their impact on the happiness of their life together, although specific actions can affect all aspects of the conjugal relationship.  When cited as a source of injustice within the meaning of art. 422, harmful or wrongful acts, or faults, committed by the spouses must be clearly connected with the fate of the family patrimony.  They must, in a word, be in the nature of economic faults (Kasirer, at p. 593).

E.  Unequal Partition Not Warranted

[29]       Thus, any causes of injustice that are ascribed to a spouse must be analysed from the standpoint of their impact on the patrimony.  This rule holds true where spousal misconduct is alleged, as such misconduct must correspond to an economic fault that is connected with performance of the obligation to contribute.  From this standpoint, the Court of Appeal’s application of art. 422 was inconsistent with the limits placed by the legislature on the courts’ power to order unequal partition.  This conclusion flows from the reasons invoked by the Court of Appeal for excluding the respondent’s pension credits from the partition of the family patrimony.

[30]       I must note at the outset that one of the reasons invoked by the Court of Appeal is totally irrelevant to the dispute between the parties.  The court included the respondent’s first marriage among the factors relevant to its decision on unequal partition.  But nothing in the record suggests that the first marriage had the slightest impact on the parties’ life together or on the respondent’s financial circumstances during or at the time of dissolution of his second marriage.  There is no basis in the evidence for considering that factor.  Indeed, the respondent did not even try to argue it in this Court.  The Court of Appeal appears, in assessing the facts relevant to the appeal before it, to have made a clear error on this point.

[31]       Furthermore, the Court of Appeal placed great stress on the fact that the parties had contributed unequally to the family patrimony, which was composed almost exclusively of contributions made by the respondent during the marriage.  The stress placed by the Court of Appeal on this point was unwarranted in the instant case.  First of all, there is no evidence of economic fault or injustice on the appellant’s part.  As the parties had agreed, she studied and worked, often part‑time or in unstable or temporary jobs.  Her activities in the home were also continual.  Her income went to a large part — to the extent of her ability to pay — toward their life together, as she contributed to, among other things, the [translation] “little extras”, as the trial judge wrote (para. 29).  The trial judge also noted that both spouses had “contributed towards the expenses of the marriage in proportion to their respective means” (para. 28).  In the circumstances, the unequal nature of the contributions certainly does not represent a cause of injustice for the purposes of art. 422.  It was a foreseeable consequence of the marriage.  Thus, the spouse who has the higher income will, in all likelihood, finance a larger share of the couple’s retirement (L.C. v. P.P., [2005] Q.J. No. 6555 (QL), 2005 QCCA 515, at paras. 17‑18, and Burman and Pineau, at pp. 68‑69).

[32]       The Court of Appeal also cited the age difference — about 20 years — between the parties and the fact that the respondent was only a few years from the mandatory retirement age.  The parties must have accepted this situation at the start of their union.  After cohabiting for seven years, they entered into a marriage that lasted 12 years.  The age difference did not in itself result in injustice in the circumstances.  The appellant did nothing that would have adversely affected the integrity of the family patrimony.  Her age cannot be held against her as a ground for refusing to apply the law as it is meant to be applied.

[33]       Partition of the patrimony, including pension credits accumulated during the marriage, represents the form of justice sought by the legislature.  The loss of a portion of his credits, which the respondent sees as an injustice, results solely from the solution adopted in the law.  This loss cannot be remedied without refusing to apply the law and disregarding its express language.

[34]       Neither the unequal contributions to the patrimony nor the loss of the parties’ expectation of a life together as a result of the dissolution of the marriage justifies the solution adopted by the Court of Appeal.  The exception provided for in art. 422 did not apply in this case, and the respondent’s appeal from the Superior Court’s judgment should have been dismissed.

V.  Conclusion

[35]       For these reasons, I would allow the appeal, set aside the decision of the Quebec Court of Appeal and restore the judgment of the Superior Court, with costs throughout.

Appeal allowed with costs.

Solicitors for the appellant:  Fontaine, Panneton et associés, Sherbrooke.

Solicitors for the respondent:  Cain Lamarre Casgrain Wells, Chicoutimi.