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).
