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Family Law: Dual spouses case a reminder to designate pension beneficiary

An important but perplexing decision recently came out of the Court of Appeal for Ontario interpreting the definition of spouse under s. 48 of Ontario’s recently amended Pension Benefits Act.

In Carrigan v. Carrigan Estate, Ronald Carrigan passed away leaving behind his current common law spouse, Jennifer Quinn, and his wife, Melodee Carrigan, who he had separated from approximately a decade ago but never divorced. Melodee had been living in the matrimonial home right up until her husband’s death and he had been paying her living expenses since their separation. Melodee was also the executrix of his estate and she and their two children were named beneficiaries under Ronald’s pension plan at the time of his death.

The only issue was determining who was Ronald’s spouse according to the act in order to decide who would receive his lump-sum pension benefit.

The trial judge held that Quinn was his spouse for the purposes of receiving the pension benefit because she was in a spousal relationship with him at the time of death and he and Melodee, while still married, had separated.

On appeal, Justice Russell Juriansz, with concurring reasons by Justice Gloria Epstein and a dissent from Justice Harry LaForme, held that neither woman qualified under the definition of spouse for the purposes of the Pension Benefits Act provisions. Accordingly, because Melodee was the named beneficiary, she was entitled to receive the pension along with the two children.

The act defines spouse as either of two persons who are married to each other or are not married to each other but are living together in a conjugal relationship continuously for a period of not less than three years. Clearly, the act allows a common law spouse living with the plan member at the time of death to receive the pension. But a dual spouse situation clouds the issue.

Subsection 48(1) of the act provides that if the member dies, the spouse on the date of death is entitled to receive a lump-sum payment equal to the commuted value of the deferred pension. This is where the trouble begins as subsection 48(3) provides that subsections 1 and 2 “do not apply where the member, former member or retired member and his or her spouse are living separate and apart on the date of death.”

Finally, subsection 48(6) allows members to designate a beneficiary if they didn’t have a spouse or were living separate and apart from their spouse at the time of death.

Juriansz concluded that in a case where there’s one married spouse (albeit separated from the member) and a common law spouse, neither person, by virtue of subsection 48(3), can be a spouse for purposes of the act.

Therefore, the designated beneficiary will get the benefit because subsection 48(3) could never apply to a common law spouse. In order to fit the definition of spouse, the common law couple can’t have separated because the law defines a common law spouse as someone who is, not was, living with the member at the time of death.

Therefore, if both married and common law spouses exist, given that subsection 3 can only apply to a married person, once you have a dual spouse situation and the married couple has separated, subsections 1 and 2 of s. 48 have no applicability at all and the benefit goes to the designated beneficiary.

If we alter the facts of the case somewhat and say that the member had one common law spouse he was living with and a second common law spouse he had recently separated from, the one he lives with would get the pension. Why should this change if there exists a married but separated spouse, particularly if she also loses the pension by virtue of the separation?

Or take another situation in which the plan member was married to spouse No. 1 when he became a member of the pension plan and designated her as the beneficiary. The member and spouse No. 1 later divorce. The member marries spouse No. 2 and they later separate but don’t divorce. The member then enters into a common law relationship with spouse No. 3 and dies later on. On these facts, spouses No. 2 and 3 don’t get the benefit simply because the plan member and his married spouse had separated at the time of death, which rendered subsections 1 and 2 inoperable to anyone. Instead, spouse No. 1, who the plan member may have had no relationship with in decades, gets the pension benefit. It’s a seemingly odd result.

It will be interesting to see if there’s any legislative effort to clarify the law on this issue. I encourage lawyers to read this case as the ultimate point for our purposes at present is to tell our clients to always designate a beneficiary of their pension plans and to remain mindful of who that person is.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at

  • Cathie
    Barry, it is only possible to give benefits to the legal spouse and the Law Comm. has now addresses this and insurers, etc are making changes. If i were a lawyer, and i am self repped, I would advice any parson not to do this. because the reality is when you begin to split assets with more than one so called spouse, the person having to split them loses the most. The lawyers win by simply haggling this issue in court one a judge can only give one spouse so much. So, a pension that is split, is then split in half and more half so a say, 2000 pension is down to under 200 a month from all the splitting. The lawyers only benefit then. People, get to know pension splitting rules in Canada before you live with another person before divorcing. The more you live with and marry, the less you get it.
  • Barry Corbin
    I concur completely with Mr. Duncan's view

    Merely as an aside to Cathie, I would point out that while polygamy is an offence under the Canadian Criminal Code, a person in a polygamous relationship arising in a jurisdiction where polygamy is permitted will have the same spousal rights, for certain purposes under Ontario law (and perhaps under the laws in other jurisdicdtions in Canada) as if he or she were in a monogamous marriage. See, for example, the definition of "spouse" in Ontario's Successional Law Reform Act and Family Law Act.
  • thenewsanta
    Please clarify for me. I understand that under the FLA there exists an option for the possibility of a polygamous marriage to be deemed to monogamous IF it arose out of a situation where that form of marriage is legal. This would never be the case in a situation where the first marriage was celebrated in Canada. I see that law as further clouding the issue of "dual spouses". More and more countries are turning away from concurrent legal spouses.
  • Donald Duncan

    Your comment that the decision is 'perplexing' is very diplomatic. My choice of language would be 'wrongly decided". It does seem to be one of those 'hard cases make bad law' decisions - the result (on the facts) was one that the court wanted to reach; but really, the obvious intent of Section 48 was that, if the deceased was survived by a cohabiting spouse (either by marriage or common-law), then the spouse received the pension, irrespective of any designation.

    The interpretation that "spouse" in 48 (3) only applies to married spouses, despite the express definition is forced and artificial. 48(3) obviouly was intended only to remove the right of a separated spouse to receive the pension benefit - not to disentitle a common-law spouse in the Carrigan situation. Laforme's dissent is the correct analysis.

    Don Duncan
    Chiarelli, Cramer, Witteveen
  • Cathie
    The law is vague and since polygamy is not legal in Canada, the default is the legally married spouse.
  • John G
    It was important to the decision that Mr Carrigan had named his wife and daughters as beneficiaries of the pension plan AFTER he was separated from his wife and living with hs commo-law spouse. It appears from that fact that he intended that value to go to those beneficiaries.

    Your basic message is right, though: pay attention to designation of beneficiaries, because the designations may survive separation, divorce, and even separation agreements renouncing rights to take as designated, if the designation has not itself been amended by the time of the planholder's death.

    This applies to pensions, RRSPs, TFSA and any other similar plans.

    Given the complete freedom of planholders to allocate these assets, though, what 'law reform' would be desirable? Is there not a risk in having the law create presumptions that override clear written instructions that can be amended by the peson who gave them?

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