Two Spouses; One Deceased - LawNow Magazine

Two Spouses; One Deceased

Ronald Carrigan had a legal spouse, whom he married in 1973, and a common law spouse, whom he began living with in 2000. He died in 2008. Both spouses claimed the death benefit under his pension. One provision of the Ontario Pension Benefits Act states that the person who is his or her spouse on the date of death is entitled to the deceased’s death benefit, but another section says it does not apply to spouses living apart at death. The trial judge ruled that this meant that the legal wife could not receive the pension benefit and it should go to the common law wife. A majority on the Ontario Court of Appeal decided in favour of the legal wife.

Justice Juriansz wrote that the section of the Act stipulating that the spouses could not live apart at the time of death could only mean a legal spouse, since “it makes no sense to conceive of a common law spouse living separate and apart” from the pension holder. He reasoned that the “living separate and apart” requirement cancelled out the provision about entitlement. He then turned to another section of the Act dealing with designated beneficiaries. He ruled that the legal spouse and the deceased’s two daughters were entitled to the death benefit because they were the designated beneficiaries of the deceased’s pension plan.

Carrigan v. Carrigan Estate 2012 ONCA 736 (CanLII)


Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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