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A Man With Two Spouses Dies -- Who Gets the Money?

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The recent decision of the Ontario Court of Appeal in the case of Carrigan v. Carrigan Estate has caused quite a media frenzy.

The case involved a contest between the late Ronald Carrigan's legal spouse and his live-in common spouse over pension benefits accruing to the spouse of the deceased.

Ronald Carrigan and his spouse Mary Melodee Carrigan separated some time in the year 2000 but never divorced. At the time of his death he was living with Jennifer Quinn in a common-law relationship. Ronald and Mary never formalized their separation by way of a separation agreement. In fact, Ronald continued to pay expenses for Mary and their two daughters up to the time of his death and designated his wife and daughters as the beneficiaries of his pension in 2002, after separation and while living with Jennifer.

Upon his death the legal spouse and his common-law spouse engaged in litigation over the survivors pension benefits. The common-law spouse was successful at trial. The trial judge found that under the Pension Benefits Act of Ontario both women were spouses of Ronald but Jennifer, who was living with Ronald at the time of his death, was entitled to the benefits.

The former spouse appealed and a somewhat divided three-member panel of the Ontario Court of Appeal overturned the trial judge, awarded the pension benefits to Mary and her two daughters, and awarded her costs of the appeal in the amount of $20,000. Justice Harry LaForme of the Court of Appeal dissented and would have upheld the trial judge's ruling in favour of the common-law spouse.

Interestingly, the majority in the Court of Appeal upheld and accepted the trial judge's finding that upon his death Ronald had two spouses (pursuant to the definition of spouse in the Pension Benefits Act). Entitlement to the benefits was not determined on the basis of who was the spouse of Ronald on the date of his death. Instead, the majority was convinced that the beneficiary designation made by Ronald in 2002, well after his separation from Mary, represented his true intention and the Pension Benefits Act, properly interpreted permitted the court to fulfill his wishes.

Despite much of the inaccurate media hype, the Carrigan case is not a family law case, nor is it a validation of any property rights of common law spouses as some lawyers and media types have suggested. It is a case determined strictly on the basis of statutory interpretation. An interpretation of the Pension Benefits Act of Ontario that permitted the court to uphold what it viewed as the wishes of the deceased.

What can we learn from this case? There are some circumstances that will give rise to the courts recognizing more than one spouse of an individual. Most of our statutes have been amended now to recognize the diversity of relationships formed in our modern society. More importantly, this case teaches us that separated individuals should formalize their rights upon separation by properly drafted lawyer assisted separation agreements and every adult who either has children and/or is engaged in any form of long term relationship should have a properly drafted lawyer assisted will.

While these comments may seem self-serving written by a practising family lawyer, the Carrigan litigation, while fact-specific, is not that unique. As our divorce rate continues to climb and as more and more individuals engage in non-marital relationships of duration, this type of litigation will become more prevalent among those who are "penny wise and pound foolish" with their legal dollars..