For a residence to be included in the family patrimony, it must acquire this family character at a certain point, either because the parties choose together to consider it as a family residence or because they make it, in fact, the habitual residence of the family.
Since the implementation of the articles of the Civil Code governing family patrimony, case law has clarified over the years the ins and outs of the concept.
Thus, nine years after getting married under the regime of separate property, following a tragic event and encouraged by his wife, Mr. moves alone to Calgary. Six months go by and the situation worsens. Without consulting his wife and without asking her for financial contribution, Mr. buys, unbeknownst to her, a "condominium" in Calgary. In the following months, Madame asks for divorce and for the division of the family patrimony. A question arises: is the "condominium" purchased by Mr. included in the family patrimony?
Case law has already ruled on this matter. In order to be considered a family residence, it must "acquire this family character at some point, either because the parties choose together to consider it as a family residence, or because they, in fact, make it the habitual residence of the family."
The court concludes that the "condominium" is not included in the family patrimony since the parties never had a "common intention" to make it a family residence. Especially since Madame was unaware of the acquisition, never visited it, and never lived there.
It is worth noting that if the parties had not been subject to the regime of separate property, but rather to the legal regime of community of acquests, the wife would have been entitled to her share under the rules governing matrimonial regime division.
Marriage, which is meant to be a sharing of love, can sometimes lead to a much less romantic sharing.
* C.A. 500-09-021026-109
