Antoine Aylwin

The appellants, as liquidators of a deceased spouse's estate, sought a declaration that the value of the family residence — held under a discretionary trust controlled by the surviving spouse — should be included in the partition of the family patrimony under art. 415 of the Civil Code of Québec.

The majority held that family residences held in trust are not in principle outside the scope of the family patrimony and that the 'rights which confer use' at art. 415 C.C.Q. are not limited to real rights.

Wide discretion should be accorded to the trier of fact in determining whether such rights exist, and the absence of an intention to evade family patrimony rules is irrelevant.

The trial judge's finding that the surviving spouse held rights which conferred use was supported by the evidence and disclosed no palpable and overriding error.

The dissent would have dismissed the appeal, finding that the trial judge erred by conflating the trustee's powers with rights and failing to consider the purpose of the trust and the beneficiaries' rights.

Appeal allowed (Côté and Karakatsanis JJ. dissenting).

The appellant, acting as tutor to an absentee and liquidator of his succession, sought to retain pension payments received on behalf of the absentee during the period he was presumed alive under art. 85 of the Civil Code of Québec.

The absentee's remains were discovered nearly six years after his disappearance, and his true date of death was established as the day after he disappeared.

The majority held that the rebuttal of the presumption of life operates retroactively, extinguishing the absentee's entitlement to pension payments from his true date of death, and that the respondent's claim for receipt of a payment not due under art. 1491 C.C.Q. succeeded when assessed retrospectively.

The dissent would have allowed the appeal, finding that the rebuttal of the presumption of life operates only prospectively and that the traditional requirements of art. 1491 C.C.Q. were not satisfied.