1. Objectifs

Intentions :
«In this article, [the author analyzes] the justifications for [the exclusion of gifts and inheritances] provided or implied in reports published during the reform of matrimonial regimes, using mainly Quebec and Ontario as examples […].» (p. 3)

Questions/Hypothèses :
The following question guided the author: «is the language of our legislation and its structure conceiving of the couple as a unit, or as a set of individuals, or as the temporary or permanent joining of two separate families?» (p. 4)

2. Méthode

Échantillon/Matériau :
L’auteure s’appuie sur les jurisprudences canadienne et québécoise sur le sujet, notamment le Code civil du Québec et le Code civil du Bas-Canada.

Type de traitement des données :
Réflexion critique

3. Résumé

«Current matrimonial regimes are the result of an attempt to infuse matrimonial law with substantive, rather than formal, equality among spouses upon their divorce or separation. The introduction of divorce in federal legislation, followed by high-profile cases showcasing the unequal and unfair results of contemporary matrimonial regimes, have led to multiple reforms of the default matrimonial regimes in all Canadian provinces and territories, constructed around the idea of marriage as an economic partnership. In the context of these reforms, the exclusion of gifts and inheritances has been justified on the basis that such property is not born from the common efforts of the spouses. Our analysis of the tenuous relationship gifts and inheritances entertain with married couples has endeavoured to show that if these gratuitous transactions cannot be justified by the spouses’ efforts, it is because private law has repeatedly considered them in the context of transfers from ascendants to descendants and has consistently raised obstacles to gratuitous transactions outside of this relationship.» (p. 53)