Pinard,
J.:
—In
this
action,
pursuant
to
subsections
172(1)
and
175(3)
of
the
Income
Tax
Act,
S.C.
1970-71-72,
c.
63
as
amended,
the
plaintiff
is
appealing
from
a
decision
of
the
Tax
Court
of
Canada
which
dismissed
her
two
appeals
against
two
notices
of
assessment
issued
by
the
defendant.
By
these
notices
of
assessment,
dated
June
18,
1982
and
January
9,
1986,
the
defendant
in
reliance
on
section
160
of
the
Act
claimed
from
the
plaintiff
amounts
of
$18,349.47
and
$4,005.22
respectively,
in
respect
of
a
tax
debt
owed
by
the
plaintiff's
husband,
the
late
Eligio
Siconolfi,
for
his
1977,
1978
and
1979
taxation
years;
the
defendant
gave
the
reason
that
Mr.
Siconolfi
had
transferred
property
to
the
plaintiff
for
a
consideration
below
its
fair
market
value,
when
he
owed
a
tax
debt.
The
provisions
of
section
160
of
the
Act
in
effect
at
the
relevant
time,
as
admitted
by
the
parties,
were
as
follows:
Art.
160.
Tax
on
income
from
property
transferred
between
husband
and
wife
or
to
minors.
(1)
Where
a
person
has,
on
or
after
the
1st
day
of
May,
1951,
transferred
property,
either
directly
or
indirectly,
by
means
of
a
trust
or
by
any
other
means
whatever,
(a)
to
his
spouse
or
to
a
person
who
has
become
his
spouse,
or
(b)
to
a
person
who
was
under
18
years
of
age,
the
following
rules
are
applicable:
(c)
the
transferee
and
transferor
are
jointly
and
severally
liable
to
pay
a
part
of
the
transferor's
tax
under
this
Part
for
each
taxation
year
equal
to
the
amount
by
which
the
tax
for
the
year
is
greater
than
it
would
have
been
if
it
were
not
for
the
operation
of
section
74
or
section
75,
as
the
case
may
be,
in
respect
of
income
from
the
property
so
transferred
or
from
property
substituted
therefor;
and
(d)
the
transferee
and
transferor
are
joint
and
severally
liable
to
pay
the
lesser
of
(i)
any
amount
that
the
transferor
was
liable
to
pay
under
this
Act
on
the
day
of
the
transfer,
and
(ii)
a
part
of
any
amount
that
the
transferor
was
so
liable
to
pay
equal
to
the
value
of
the
property
so
transferred;
but
nothing
in
this
subsection
shall
be
deemed
to
limit
the
liability
of
the
transferor
under
any
other
provision
of
this
Act.
The
plaintiff
accordingly
filed
two
notices
of
objection
against
these
two
notices
of
assessment,
and
the
defendant
subsequently
sent
the
plaintiff,
on
September
28,
1983
and
March
18,
1986,
two
notifications
in
which
she
upheld
the
assessments
without
change.
On
November
17,
1983
and
May
29,
1986
the
plaintiff
filed
appeals
with
the
Tax
Court
of
Canada
from
these
two
decisions.
The
Tax
Court
of
Canada
dismissed
these
two
appeals
in
a
decision
dated
September
29,
1987
and
varied
on
October
27,
1987.
At
the
hearing
in
this
Court,
counsel
for
the
plaintiff
indicated
that
he
withdrew
his
allegation
that
the
notices
of
assessment
issued
against
Eligio
Siconolfi
were
incorrect
in
fact
and
in
law.
Counsel
pleaded
simply
that
the
plaintiff
did
not
receive
any
transfer
of
property
from
her
husband
Eligio
Siconolfi
which
could
make
her
liable
under
section
160
of
the
Income
Tax
Act
for
the
period
subsequent
to
September
2,
1987.
Counsel
for
the
defendant,
for
his
part,
submitted
that
as
the
plaintiff
on
October
10,
1980,
whether
in
good
or
bad
faith,
received
the
sum
of
$30,000
from
her
husband
when
the
latter
owed
a
tax
debt
for
taxation
years
prior
to
1980,
she
must
as
a
consequence
of
this
"transfer
of
property"
be
held
jointly
and
severally
liable
with
her
husband
to
pay
the
latter's
tax
debt
on
the
day
of
the
said
transfer,
namely
October
10,
1980.
The
following
relevant
facts
were
duly
established
by
the
evidence:
(a)
on
October
10,
1980
the
plaintiff
was
the
sole
purchaser
of
real
property
located
at
7445
rue
Elisée,
Ville
St-Léonard,
for
$160,000,
$65,693.23
of
which
was
paid
in
cash
partly
as
a
result
of
the
fact
that
her
husband
Eligio
Siconolfi
gave
her
the
sum
of
$30,000
which
he
undertook
to
pay
her
in
their
marriage
contract;
(b)
at
the
time
this
sum
of
$30,000
was
paid,
the
plaintiff's
husband
owed
the
defendant
tax,
interest
and
penalties
for
his
1977,
1978
and
1979
taxation
years;
(c)
on
October
10,
1980,
the
late
Eligio
Siconolfi
owed
the
defendant
a
total
of
$18,349.47
for
his
1977
and
1978
taxation
years;
(d)
on
January
9,
1986
Mr.
Siconolfi
owed
the
defendant
$4,005.21,
namely
$3,720
in
tax
and
$285.21
in
interest,
for
the
1979
taxation
year;
(e)
the
clause
of
the
marriage
contract
under
which
the
plaintiff
received
the
sum
of
$30,000
from
her
husband
is
the
following,
Eligio
Siconolfi
being
"The
First
Party":
THE
First
Party
shall
.
.
.
and
furthermore
donates
unto
his
said
future
wife
hereto
present
and
accepting:
(a)
The
sum
of
THIRTY
THOUSAND
DOLLARS
($30,000.00)
to
be
paid
at
any
time
during
the
said
marriage
as
he
sees
fit,
the
First
Party
hereby
constituting
himself
debtor
of
the
Second
Party
to
the
extent
of
the
said
sum.
The
donor,
however,
reserves
the
right
at
any
time,
to
pay
the
whole
or
any
part
of
the
said
sum
either
in
cash
or
by
the
transfer
of
property,
moveable
or
immoveable.
Should
the
said
sum
not
have
been
paid
during
the
existence
of
the
marriage,
and
he
predeceases
her,
she
shall
have
the
right
to
demand
payment
of
this
sum
or
the
part
thereof
then
unpaid
or
unsatisfied
from
his
succession.
Essentially
the
question
is
to
determine,
in
the
circumstances,
at
what
time
there
was
a
transfer
of
property
within
the
meaning
of
section
160
of
the
Act.
On
the
one
hand,
the
plaintiff
maintained
that
this
transfer
occurred
on
the
date
of
the
gift
stipulated
in
the
marriage
contract,
namely
September
2,
1977,
when
she
acquired
the
right
to
$30,000
or
its
equivalent
in
movable
or
immovable
securities;
on
the
other
hand,
the
defendant
considered
that
the
transfer
occurred
on
October
10,
1980,
when
the
sum
was
paid
to
the
plaintiff.
As
it
is
critical
to
determine
"the
day
of
the
transfer”
as
provided
in
section
160
of
the
Act,
the
Court
must
examine
the
meaning
to
be
given
to
a
transfer
of
property
in
the
said
provision.
In
this
regard
I
consider
that
I
should
follow
the
modern
rule
of
legislative
interpretation
as
defined
by
the
writer
E.A.
Dreidger
and
stated
by
the
Supreme
Court
of
Canada
as
follows,
when
it
had
to
interpret
provisions
of
the
Income
Tax
Act
in
Stubart
Investments
Ltd.
v.
The
Queen,
[1984]
1
S.C.R.
536;
[1984]
C.T.C.
294;
84
D.T.C.
6305
at
page
316
(D.T.C.
6323):
While
not
directing
his
observations
exclusively
to
taxing
statutes,
the
learned
author
of
“Construction
of
Statutes",
2nd
ed,
(1983),
at
87,
EA
Dreidger,
put
the
modern
rule
succinctly:
Today
there
is
only
one
principle
or
approach,
namely,
the
words
of
an
Act
are
to
be
read
in
their
entire
context
and
in
their
grammatical
and
ordinary
sense
harmoniously
with
the
scheme
of
the
Act,
the
object
of
the
Act,
and
the
intention
of
Parliament.
Subsection
248(1)
of
the
Act
defines
"property"
as
follows:
"property"
—
"property"
means
property
of
any
kind
whatever
whether
real
or
personal,
or
corporeal
or
incorporeal
and,
without
restricting
the
generality
of
the
foregoing,
includes
(a)
a
right
of
any
kind
whatever,
a
share
or
a
chose
in
action,
(b)
unless
a
contrary
intention
is
evident,
money,
(c)
a
timber
resource
property,
and
(d)
the
work
in
progress
of
a
business
that
is
a
profession
.
.
.
[Emphasis
added.]
As
however,
the
Act
gives
no
definition
of
the
word
"transfer",
I
feel
it
is
necessary
to
refer
to
the
various
definitions
given
by
recognized
dictionaries
of
the
word
"transfert"
in
French
and
"transfer"
in
English.
1.
The
Robert
Dictionnaire
Alphabétique
et
Analogique
de
la
Langue
Franç-
caise,
1976
Edition,
Tome
6,
defines
the
word
“transfert”
as
a
term
in
legal
language:
"act
by
which
a
person
passes
a
right
to
another.
Transfer
of
ownership".
2.
Larousse,
Three
Volumes,
1966
Edition,
Tome
3,
defines
“transfert”,
again
in
the
legal
context:
“legal
synonym
of
conveyance:
The
contract
itself
suffices
to
transfer
ownership
of
the
real
property
sold
.
.
.
Transfer
of
ownership,
operation
by
which
property
changes
owner".
3.
The
Oxford
English
Dictionary,
2nd
ed.,
vol.
XVIII,
1989,
defines
"transfer":
"Law.
Conveyance
from
one
person
to
another
of
property,
spec,
of
shares
or
stock".
In
light
of
the
foregoing
definitions,
I
consider
that
the
transfer
of
property
contemplated
by
section
160
of
the
Act
is
a
simple
transfer
of
ownership,
without
it
being
necessary
for
the
recipient
to
have
possession
of
the
thing
or
object
the
ownership
of
which
is
thus
transferred.
In
a
precise
definition,
the
Income
Tax
Act
recognizes
that
"property"
includes
a
right
of
any
kind
whatever,
and
consequently
the
right
of
ownership
of
a
thing.
In
legal
terms,
it
is
established
that
transferring
the
right
of
ownership
of
a
thing,
as
for
example
in
a
sale
or
gift,
does
not
necessarily
imply
immediate
surrender
of
that
thing.
As
I
see
it,
if
the
legislature
had
really
intended
to
suspend
the
effect
of
section
160
until
the
debtor
of
a
tax
debt
who
transferred
ownership
of
a
thing
to
his
spouse
or
to
a
person
under
18
years
of
age
had
actually
given
the
recipient
possession
of
that
thing,
it
could
have
said
so.
Section
160
is
designed
to
counter
tax
evasion,
and
I
do
not
think
in
view
of
the
language
used
that
the
legislature
intended
to
limit
itself
in
this
way,
even
though
a
taxpayer's
tax
debt
must
be
borne
by
a
third
party
in
the
circumstances.
Such
an
interpretation
also
seems
to
me
to
be
in
complete
agreement
with
the
following
opinion
expressed
by
Thorson,
J.
of
the
Exchequer
Court
of
Canada
in
Estate
of
David
Fasken
v.
M.N.R.,
[1948]
Ex.
C.R.
580;
[1948]
C.T.C.
265;
49
D.T.C.
491,
when
he
had
to
interpret
certain
provisions
of
the
Income
War
Tax
Act
in
respect
of
the
meaning
to
be
given
to
a
transfer
of
property;
at
page
279
(D.T.C.
497),
he
said:
The
word
"transfer"
is
not
a
term
of
art
and
has
not
a
technical
meaning.
It
is
not
necessary
to
a
transfer
of
property
from
a
husband
to
his
wife
that
it
should
be
made
in
any
particular
form
or
that
it
should
be
made
directly.
All
that
is
required
is
that
the
husband
should
so
deal
with
the
property
as
to
divest
himself
of
it
and
vest
it
in
his
wife,
that
is
to
say,
pass
the
property
from
himself
to
her.
The
means
by
which
he
accomplishes
this
result,
whether
direct
or
circuitous,
may
properly
be
called
a
transfer.
[Emphasis
added.]
To
the
same
effect,
Cattanach,
J.
of
the
Federal
Court
of
Canada
said
the
following
in
G.A.
Murphy
v.
The
Queen,
[1980]
C.T.C.
386;
80
D.T.C.
6314,
at
page
392
(D.T.C.
6320),
in
dealing
with
provisions
of
the
Income
Tax
Act:
Also
common
to
both
subsection
56(2)
and
74(1)
is
the
concept
of
a
"transfer".
I
accept
the
contention
of
counsel
for
the
plaintiff
that
the
word
“transfer”
as
used
in
subsection
56(2)
and
the
word
"transferred"
as
used
in
subsection
74(1)
are
not
used
in
a
technical
sense
and
in
its
ordinary
dictionary
meaning
it
is
to
give
or
hand
over
property
from
one
person
to
another.
[Emphasis
added.]
In
view
of
this
interpretation
of
section
160
the
Court
must
now
consider
whether,
if
the
sum
of
$30,000
was
not
paid
to
the
plaintiff
until
October
10,
1980,
she
in
fact
received
a
transfer
of
ownership
of
that
money,
as
she
maintained,
on
the
date
of
her
marriage
contract
with
Eligio
Siconolfi
on
September
2,
1977.
In
this
regard,
as
it
was
a
marriage
contract
concluded
in
Quebec
between
Quebecers
who
subsequently
married
in
Quebec,
the
provisions
of
the
Civil
Code
of
Lower
Canada
must
be
considered.
As
Mr.
Maurice
Boisvert
so
aptly
expressed
it,
“If
income
tax
is
a
creation
of
the
Act
which
imposes
it,
that
Act
must
apply
within
the
framework
of
the
civil
laws
governing
legal
relationships
between
individuals.
The
tax
is
grafted,
as
it
were,
on
the
legal
tree
which
covers
with
its
shadow
the
rights
and
obligations
arising
from
the
contracts".
It
is
by
the
operation
of
arts.
777,
782,
787,
788,
795,
817,
819,
821,
822
and
1085
of
the
Civil
Code
of
Lower
Canada
that
the
gift
of
$30,000
stipulated
in
the
marriage
contract
here
had
the
effect
of
transferring
ownership
of
the
money
to
the
plaintiff
when
the
contract
was
signed
on
September
2,1977,
a
contract
in
fact
followed
by
a
marriage
of
the
parties.
The
relevant
provisions
of
these
articles
are:
Art.
777.
It
is
essential
to
gifts
intented
[sic]
to
take
effect
inter
vivos
that
the
donor
should
actually
divest
himself
of
his
ownership
in
the
thing
given.
[The
consent
of
the
parties
is
sufficient,
as
in
sale,
without
the
necessity
of
delivery]
Art.
782.
It
may
be
stipulated
that
a
gift
inter
vivos
shall
be
suspended,
revoked
or
reduced,
under
conditions
which
do
not
depend
solely
upon
the
will
of
the
donor.
If
the
donor
reserve
to
himself
the
right
to
dispose
of
or
to
take
back
at
pleasure
some
object
included
in
the
gift,
or
a
sum
of
money
out
of
the
property
given,
the
gift
holds
good
for
the
remainder,
but
is
void
as
to
the
part
reserved,
which
continues
to
belong
to
the
donor,
except
in
gifts
by
contract
of
marriage.
Art.
787.
Gifts
inter
vivos
do
not
bind
the
donor
nor
produce
any
effect
until
after
they
are
accepted.
If
the
donor
be
not
present
at
the
acceptance,
they
take
effect
only
from
the
day
on
which
he
acknowledges
or
is
notified
of
it.
Art.
788.
[The
acceptance
of
a
gift
need
not
be
in
express
terms.
It
may
be
inferred
from
the
deed
or
from
circumstances,
among
which
may
be
counted
the
presence
of
the
donee
to
the
deed,
and
his
signature.]
This
acceptance
is
presumed
in
a
contract
of
marriage,
as
well
with
regard
to
the
consorts
as
to
the
future
children.
In
gifts
of
movable
property
this
presumption
also
results
from
the
delivery.
Art.
795.
[Gifts
inter
vivos
of
present
property
when
they
are
accepted
divest
the
owner
of
and
vest
the
donee
with
the
ownership
of
a
thing
given,
as
in
sale,
without
any
delivery
being
necessary.]
Art.
817.
The
rules
concerning
gifts
inter
vivos
apply
to
those
which
are
made
by
contract
of
marriage,
with
such
modifications
as
result
from
special
provisions.
Art.
819.
Subject
to
the
same
rules,
when
particular
exceptions
do
not
apply,
future
consorts
may
likewise,
by
their
contract
of
marriage,
give
to
each
other,
or
one
to
the
other,
or
to
the
children
to
be
born
of
their
marriage,
property
either
present
or
future.
Art.
821.
Gifts
of
present
property
by
contracts
of
marriage
are,
like
all
others,
subject
to
acceptance
inter
vivos.
The
acceptance
is
presumed
in
the
cases
mentioned
in
the
second
section
of
this
chapter.
Third
parties
not
present
to
the
deed
may
accept
separately,
either
before
or
after
the
marriage,
gifts
made
in
their
favor.
Art.
822.
Gifts
by
contract
of
marriage
of
present
or
future
property
are
valid,
even
as
regards
third
parties,
only
in
the
event
of
the
marriage
taking
place.
If
the
donor
or
the
third
party
who
has
accepted
the
gift
die
before
the
marriage,
the
gift
is
not
void,
but
remains
suspended
by
the
condition
that
the
marriage
will
take
place.
Art.
1085.
The
fulfilment
of
the
condition
has
a
retroactive
effect
from
the
day
on
which
the
obligation
has
been
contracted.
If
the
creditor
be
dead
before
the
fulfilment
of
the
condition,
his
rights
pass
to
his
heirs
or
legal
representatives.
The
fact
that
a
gift
of
the
type
at
issue
here
in
the
marriage
contract
filed
in
this
proceeding
has
the
effect
of
transferring
ownership
of
the
money
given
on
the
date
that
contract
is
signed
is
further
confirmed
by
commentators
and
by
judicial
decisions.
In
his
text
titled
Donations,
substitutions
et
fiducie,
Germain
Brière
writes,
in
the
various
following
numbered
paragraphs:
258.
Ordinary
law
of
gifts
and
exceptions.
Mention
should
at
once
be
made
of
a
very
important
provision,
that
of
art.
817
C.C.L.C.,
under
which
gifts
in
a
marriage
contract
are
subject
to
the
rules
concerning
gifts
inter
vivos,
with
such
modifications
resulting
from
special
provisions
as
will
now
be
considered.
259.
Mitigations
of
rule.
The
rule
that
a
gift
must
be
accepted
is
well
known
(art.
787
C.C.L.C.).
As
we
know,
this
acceptance
may
be
tacit
or
presumed
(art.
788
C.C.L.C.)
in
gifts
in
general,
but
there
are
other
mitigations
which
are
specific
to
gifts
by
marriage
contract.
260.
The
law
presumes
acceptance.
This
is
the
effect
of
art.
821
C.C.L.C.
for
gifts
of
present
property
and
of
art.
788(2)
C.C.L.C.
for
gifts
in
general,
when
they
are
made
in
a
marriage
contract.
It
would
not
appear
to
be
the
case
for
born
children.
This
rule
is
explained
by
the
fact
that,
by
signing
the
deed,
the
future
spouses
tacitly
accept
the
gifts
for
themselves
and,
as
a
corollary,
their
acceptance
applies
to
their
unborn
children.
Acceptance
remains
necessary
in
itself,
but
is
not
subject
to
any
particular
formality:
simple
signature
of
the
marriage
contract
will
suffice.
265.
Suspensive
condition.
A
gift
by
marriage
contract
is
subject
to
the
marriage
taking
place,
and
the
law
accordingly
attaches
to
it
a
suspensive
condition:
it
is
said
to
be
made
under
the
condition
si
nuptiae
sequantur.
The
right
to
the
thing
given,
though
the
donee
acquires
it
on
signature
of
the
contract
or
on
acceptance,
will
exist
or
not
depending
on
whether
the
marriage
takes
place
(art.
822
C.C.L.C.).
The
legislature
assumes
that
the
donor
acted
in
consideration
of
the
marriage,
that
he
would
not
otherwise
have
made
the
gift.
266.
The
marriage
takes
place.
Once
the
marriage
has
taken
place,
the
right
to
the
thing
given
is
deemed
to
have
existed
from
the
time
of
the
gift:
this
is
an
application
of
art.
1085
C.C.L.C.
.
.
.
274.
Review
of
concept
of
present
property.
As
we
saw
in
considering
consequences
of
the
irrevocability
of
gifts,
the
concept
of
"present
property"
could
not
be
limited
to
property
the
donor
has
in
his
patrimony
at
the
time
of
the
gift;
based
on
the
last
paragraph
of
art.
777
C.C.L.C.,
it
could
be
said
that
the
gift
of
a
sum
of
money
or
thing
which
is
undetermined
but
determinable
can
be
regarded
as
a
gift
of
present
property
although
the
donor
is
not
yet
entitled
to
it.
What
matters
is
that
the
donor
undertakes
the
obligation,
makes
himself
a
debtor
of
the
donee.
In
Goyette
v.
Dionne
&
Mercier
et
al.
(1928),
44
C.K.B.
15,
the
Court
said
the
following
at
16
et
seq.
:
Whereas
the
only
question
presented
by
the
case
is
as
to
whether
this
gift
is
a
gift
inter
vivos
and
of
present
property
or
a
gift
of
future
property,
resulting
from
death,
and
any
other
question
raised
by
the
parties
is
by
common
agreement
eliminated
as
having
no
relevance
to
the
case;
Whereas
the
fact
of
providing
that
the
money
given
will
be
payable
within
three
months
of
the
donor's
death
does
not,
as
the
learned
Superior
Court
judge
recognized,
imply
that
the
gift
is
a
gift
mortis
causa,
as
this
clause
is
only
a
term
which
delays
execution
of
the
gift;
and
whereas
the
fact
of
providing
that
the
money
given
to
each
donee
will
be
paid
from
and
out
of
the
most
clear
and
apparent
property
in
the
estate
of
the
donor
does
not
necessarily
imply
that
the
gift
in
the
instant
case
is
a
gift
of
future
property,
even
if
this
stipulation
is
taken
as
similar
to
the
clause
discussed
by
writers
and
the
courts
regarding
things
given
to
be
taken
from
the
property
of
the
donor's
estate;
Whereas
as
a
matter
of
sound
logic
and
legal
interpretation,
to
determine
the
nature
of
an
act
undue
importance
should
not
be
attached
to
any
particular
phrase:
rather,
all
parts
of
the
document
should
be
considered
and
it
should
be
taken
as
a
whole;
Whereas
under
art.
777
C.C.
the
criterion
for
a
gift
inter
vivos,
and
its
essential
component,
are
"that
the
donor
should
actually
divest
himself
of
his
ownership
in
the
thing
given”,
and
whereas
in
the
instant
case
such
divestiture
unquestionably
occurred,
since
it
states
in
the
said
deed
of
gift
that
the
donor
now
gives
each
of
the
donees
the
sum
of
$10,000,
reserves
a
usufruct
to
himself
and
undertakes
to
pay
the
amounts
given
to
each
donee,
and
that
the
donor
further
formally
states
that
he
“absolutely
divests
himself
of
the
bare
ownership
of
the
three
sums
of
$10,000
each
so
given,
and
recognizes
that
he
is
a
debtor
therefor
to
the
donees"
so
that
as
of
this
moment
his
estate
has
become
subject
to
an
obligation
to
pay
the
said
three
sums
of
$10,000;
In
view
of
the
last
paragraph
of
art.
777
C.C.,
which
provides
that
a
gift
“of
a
sum
of
money
or
other
indeterminate
thing
which
the
donor
promises
to
pay
or
to
deliver
divests
the
donor
in
the
sense
that
he
becomes
the
debtor
of
the
donee";
Whereas,
for
these
reasons,
the
gift
in
the
instant
case
is
a
gift
inter
vivos
of
present
property,
and
the
Superior
Court
judgment
finding
the
said
gift
to
be
void
as
being
a
gift
mortis
causa
of
future
property
is
in
error
.
.
.
and
at
page
23:
When
a
donor
states
that
he
undertakes
to
pay
each
of
the
said
donees
the
amounts
mentioned
above,
it
cannot
be
said
that
an
obligation
has
not
immediately
been
created
requiring
the
donor
as
of
that
moment
to
pay
the
sum
and
acting
as
a
charge
on
his
estate,
even
though
the
due
date
for
payment
is
delayed
until
his
death.
Finally,
in
Dame
Labrie
v.
Gilbert,
[1973]
Que.
S.C.
134,
Toth,
J.
also
had
occasion
to
refer
to
academic
opinion
and
case
law
in
connection
with
an
action
for
execution
of
a
marriage
contract
by
the
wife
following
a
decree
of
separation
as
to
bed
and
board.
The
clause
in
question
is
set
out
as
follows
in
this
judgment,
at
page
134:
In
consideration
of
the
said
future
marriage
the
future
spouse
makes
an
inter
vivos
and
irrevocable
gift
in
full
and
absolute
ownership,
from
the
date
the
marriage
is
celebrated
and
subject
to
the
express
condition
that
it
may
not
be
distrained
on
the
future
wife,
who
accepts
.
.
.
of
the
sum
of
$5,000,
for
which
he
undertakes
to
be
a
debtor
to
the
future
wife
and
which
will
be
payable
to
her
without
interest.
At
pages
134
et
seq.,
Toth,
J.
writes:
Prof.
Albert
Bohémier
Jr.,
in
his
article
"Des
donations
consenties
par
contrat
de
mariage
et
la
maxime
donner
et
retenir
ne
vaut",
writes
[(1964-65)
67
R.
du
N.
229,
at
242]:
In
a
gift
inter
vivos
it
is
necessary,
but
it
will
suffice
to
preserve
the
rule
“giving
and
retaining
has
no
effect”,
or
still
better,
to
ensure
that
the
donor's
obligation
is
final
and
irrevocable.
Under
the
first
paragraph
of
art.
777
C.C.,
it
is
of
the
essence
of
a
gift
that
it
must
have
effect
inter
vivos,
that
the
donor
must
actually
divest
himself
of
his
ownership
or
that
the
donor
must
actually
undertake
to
be
a
debtor
of
the
thing
he
promises
to
deliver
or
to
give
(art.
777(6)
C.C.).
From
the
time
that
the
donor
finally
and
irrevocably
divests
himself
of
ownership,
the
gift
inter
vivos
of
present
property
has
been
made,
regardless
of
the
nature
of
the
property
which
is
the
subject
of
the
gift.
Accordingly,
there
is
a
gift
of
present
property
inter
vivos
when
the
existence
of
the
donor's
obligation
is
no
longer
dependent
on
his
will,
directly
or
indirectly
.
.
.
In
the
case
of
a
gift,
what
is
meant
by
present
property
when
a
sum
of
money
is
involved?
Article
777
C.C.
contains
the
following
rule:
The
gift
of
an
annuity
created
by
the
deed
of
such
gift,
or
of
a
sum
of
money
or
other
indeterminate
thing
which
the
donor
promises
to
pay
or
to
deliver,
divests
the
donor
in
the
sense
that
he
becomes
the
debtor
of
the
donee.
It
is
the
divestiture
which
makes
present
property
of
a
sum
of
money
that
is
the
subject
of
a
gift.
Sir
Alexandre
Lacoste
C.J.
said
in
Dorval
v.
Préfontaine
(1905),
14
Q.B.
80,
at
87:
The
special
nature
of
the
gift
of
present
property
is
that
it
takes
effect
immediately
at
the
time
of
the
deed,
so
that
the
donor
of
the
thing
given
is
at
once
divested
of
it,
and
hence
it
follows
that
the
thing
given
must
be
in
the
donor's
estate
at
that
time,
or
at
least,
he
then
becomes
the
donee's
debtor
(arts.
755
and
777
C.C.).
If
therefore
the
donor
becomes
the
donee's
debtor,
the
gift
is
of
present
property.
The
criterion
in
this
matter
is
whether
the
donor
has
actually
and
irrevocably
become
a
debtor,
not
whether
he
had
the
amount
available
at
the
time
of
the
gift.
Prof.
Bohémier
writes
(op.
cit.,
p.
297):
.
.
.
A
gift
of
present
property
is
one
which
concerns
property
the
donor
has
or
does
not
have,
but
which
is
irrevocable
because
the
donor
is
no
longer
free
not
to
perform
the
obligation
he
has
undertaken.
The
solvency
of
the
donor
at
the
time
of
the
gift,
whether
he
has
the
amount
given
in
his
estate,
is
of
no
importance
in
analysing
the
question
of
whether
the
gift
is
of
present
or
future
property.
The
gift
is
valid
between
the
parties
if
there
is
a
divestiture
within
the
meaning
of
art.
777
C.C.,
even
if
the
creditors
can
make
use
of
the
Paulian
action.
This
in
fact
is
what
the
Superior
Court
held
in
Bisson
v.
Labrie,
[1946]
C.S.
462:
A
gift
by
a
marriage
contract
worded
as
follows:
"On
the
occasion
of
his
marriage
the
future
husband
makes
a
gift
to
the
future
wife
of
the
sum
of
$5,000
which
the
future
wife
shall
be
entitled
to
claim
in
the
lifetime
or
on
the
death
of
the
future
husband
from
property
most
clearly
owned
by
him.
However,
the
future
husband
shall
be
responsible
for
administering
the
said
money
and
the
income
will
be
used
to
assist
in
raising
the
children
to
be
born
of
the
said
marriage,
and
in
the
event
that
the
future
wife
dies
first
this
gift
shall
be
void”,
is
a
valid
gift
with
the
donor
being
divested
of
ownership,
in
that
he
becomes
a
debtor
of
the
donee,
a
divestiture
which
does
not
imply
that
the
donor
is
owner
of
the
property
given
at
the
time
of
the
gift.
As
in
sale,
consent
of
the
parties
will
suffice
without
the
necessity
for
delivery.
As
set
forth
in
this
judgment,
the
evidence
shows
that
the
husband
did
not
have
the
amount
given
by
the
marriage
contract
in
his
estate
at
the
time
of
the
gift,
and
his
marriage
contract
indeed
rendered
him
insolvent
.
.
.
Prof.
Comtois
writes
(“Essai
sur
les
donations
par
contrat
de
mariage”,
(1967-68),
70
R.
du
N.
221,
at
418
and
419):
The
distinction
between
present
and
future
property
is
much
more
difficult
to
apply
when
money
is
the
subject-matter
of
the
gift.
As
an
example,
I
give
X
the
sum
of
$5,000
payable
in
two
years.
At
the
time
of
the
gift
I
do
not
have
this
sum
of
money
in
my
possession.
That
does
not
prevent
the
gift
being
a
gift
inter
vivos
from
the
time
the
donor
undertakes
the
obligation
to
pay
it.
When
the
gift
is
of
an
annuity
or
sum
of
money
(last
paragraph
of
art.
777
C.C.),
the
obligation
undertaken
by
the
donor
to
pay
or
deliver
divests
the
donor
and
makes
him
a
debtor
of
the
donee.
This
may
be
seen
as
a
matter
of
wording,
but
it
does
not
alter
the
fact
that
once
the
gift
is
made
the
amount
promised
is
included
in
the
liabilities
of
the
donor's
estate.
This
means
that
there
was
a
genuine
obligation
and
complete
divestiture.
The
donor
is
no
longer
free
to
acquire
or
not
acquire
the
property.
Once
he
has
acquired
the
property,
in
any
way
whatever,
the
donee
may
require
him
to
perform
his
obligation
when
the
deadline
arrives.
In
any
case,
the
donor
cannot
be
said
to
be
free
.
.
.
I
will
conclude
this
analysis
by
another
quotation
from
Mignault
(Le
droit
civil
canadien,
t.
4
(1899),
p.
90)
on
gifts
payable
at
a
future
date
(when
the
donor
dies),
which
also
applies
to
gifts
payable
without
a
fixed
date:
The
starting-point
is
the
question
of
the
validity
of
a
gift
of
a
sum
of
money
payable
on
the
donor's
death.
According
to
most
French
writers
and
court
decisions,
such
a
gift
is
valid.
All
types
of
property
can
be
given,
they
say,
incorporeal
as
well
as
corporeal.
Thus,
a
debt
may
be
given
and
from
the
moment
of
the
gift
the
donor
becomes
the
donee's
debtor.
Does
it
matter
whether
the
debt
is
payable
at
a
fixed
date
and
that
date
is
the
donor's
death?
The
donor's
divestiture
is
present
and
irrevocable:
present,
because
the
debt
immediately
enters
the
estate
of
the
donee,
who
may
dispose
of
it
or
pass
it
on
to
his
heirs;
irrevocable,
because
the
donor
may
no
longer
cease
to
be
the
donee's
debtor,
he
cannot
abolish
or
limit
the
right
he
has
given
to
the
donee.
Of
what
importance
then
is
it
that
the
donor,
by
wasting
his
property,
may
make
the
donee's
debt
meaningless?
The
right
should
not
be
confused
with
the
fact.
The
effectiveness
of
a
personal
term
creditor's
right
is
undoubtedly
subject
to
the
future
solvency
of
his
debtor,
but
it
is
subject
in
fact,
for
payment,
for
execution,
and
not
in
law
so
far
as
the
actual
existence
of
the
debt
is
concerned,
which
the
debtor
can
never
alter.
In
the
contract
under
consideration
there
is
no
doubt
that
the
defendant
undertook
to
be
a
debtor
in
an
irrevocable
manner.
There
was
divestiture
within
the
meaning
of
art.
777
C.C.
This
is
accordingly
a
gift
of
present
property,
not
a
gift
of
future
property.
In
the
same
way,
in
the
contract
at
issue
here
there
is
no
doubt
that
Eligio
Siconolfi
irrevocably
undertook
to
be
a
debtor.
There
was
divestiture
within
the
meaning
of
article
777
of
the
Civil
Code
of
Lower
Canada.
Accordingly,
there
was
a
gift
of
present
property,
not
a
gift
of
future
property.
There
was
a
genuine
transfer
of
ownership,
and
so
a
transfer
of
property
within
the
meaning
of
section
160
of
the
Income
Tax
Act
on
the
date
the
marriage
contract
was
signed,
namely
September
2,
1977.
Section
160
of
the
Act
accordingly
cannot
have
any
effect
against
the
plaintiff
with
respect
to
any
tax
debt
of
the
late
Eligio
Siconolfi
subsequent
to
September
2,
1977.
At
the
hearing
in
this
Court
counsel
for
the
parties
agreed
that
in
the
event
of
such
a
finding,
the
notice
of
assessment
of
June
18,
1982
would
be
referred
back
to
the
Minister
of
National
Revenue
for
him
to
attempt
to
identify
factually,
or
if
that
is
not
feasible,
on
a
pro
rata
basis,
the
tax
debt
of
the
late
Eligio
Siconolfi
on
September
2,
1977.
The
plaintiff's
action
is
accordingly
allowed
with
costs.
Appeal
allowed.
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