Carrigan v Carrigan Estate: A Case of Death Benefits and Two Spouses
In Carrigan v Carrigan Estate, 2012 ONCA 736, a divided court addressed whether a common law partner or separated spouse should receive the pension benefits of a man who had two spouses at the time of his death.
In 1973, Melodee and Ronald Carrigan were married. They remained legally married until his death in 2008. In 1986, Mr. Carrigan designated Mrs. Carriagan as his estate trustee. Mr. Carrigan also wrote a will designating Mrs. Carrigan as the sole beneficiary of the residue of his estate after bequests to their two daughters. In 2002, Mrs. Carrigan and their daughters were named as the beneficiaries of the death benefit in his pension plan.
At trial, the judge found that the Carrigan’s most likely separated in 1996. In January 2000, Mr. Carrigan started living with Jennifer Quinn whom he resided with until his death. However, the Carrigans never formalized their separation through a court order or a separation agreement.
At trial, both Mrs. Carrigan and Ms. Quinn claimed the death benefit of Mr. Carrigan’s pension as his spouse under s. 48 of the Pension Benefits Act, RSO 1990, c P.8 [PBA]. Section 1 of the PBA outlines the definition of “spouse” in the statute:
‘Spouse’ means, except where otherwise indicated in this Act, either of two persons who, (a) are married to each other, or (b) are not married to each other and are living together in a conjugal relationship, (i) continuously for a period of not less than three years or (ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child both as defined by the Family Law Act; (conjoint).
Section 48 outlines the entitlement of pre-retirement death benefits:
(1) If a member who is entitled under the pension plan to a deferred pension described in section 37 dies before payment of the first instalment is due, or if a former member or retired member dies before payment of the first installment of his or her deferred pension or pension is due, the person who is his or her spouse on the date of death is entitled, (a) to receive a lump sum payment equal to the commuted value of the deferred pension; (b) to require the administrator to pay an amount equal to the commuted value of the deferred pension into a registered retirement savings arrangement; or (c) to receive an immediate or deferred pension, the commuted value of which is at least equal to the commuted value of the deferred pension…
Application of subss. (1, 2)
(3) 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…
(6) A member, former member or retired member described in subsection (1) may designate a beneficiary and the beneficiary is entitled to be paid an amount equal to the commuted value of the deferred pension mentioned in subsection (1) or (2), (a) if the member, former member or retired member does not have a spouse on the date of death; or (b) if the member, former member or retired member is living separate and apart from his or her spouse on the date of death. [Emphasis added]
At trial, the judge held that Mrs. Carrigan and Ms. Quinn were both spouses as defined by s. 1 of the PBA: Mrs. Carrigan on account of her legal marriage to Mr. Carrigan and Ms. Quinn because she was in a common law relationship with Mr. Carrigan that lasted until his death.
The trial judge found that reference to “the spouse” in s. 48(1) meant that there could only be one spouse entitled to the benefit. This meant that the benefit could not be divided between two people. The trial judge also found that s. 48(3) excluded Mrs. Carrigan since the Carrigans lived apart at his death. Therefore, the trial judge held that Ms. Quinn was entitled to the death benefit as she lived with Mr. Carrigan until his death.
Another issue was whether the benefit should go to the named beneficiaries, Mrs. Carrigan and her daughters, under s. 48(6). The trial judge read s. 48(6) to apply only where there is “no eligible spouse.” The trial judge held that s. 48(6) did not apply because Ms. Quinn counted as an eligible spouse.
At the Court of Appeal, the three judge panel was split. The leading opinion was written by Judge Juriansz, the dissent by Judge LaForme and the concurring opinion by Judge Epstein.
On appeal, the primary issue was whether the death benefit should go to Ms. Quinn as a spouse under s. 48(1) or Mrs. Carrigan and her daughters as the named beneficiaries under s. 48(6). In line with the trial court, Juriansz J.A. held that both Mrs. Carrigan and Ms. Quinn constitute spouses for the purposes of s. 48 of the PBA.
In the trial decision, the judge held that s. 48(3) imposed a “requirement” that the spouse and the member could not be living apart at the time of the member’s death. This excluded Mrs. Carrigan from consideration as an eligible spouse. However, Juarinsz J.A. held that s. 48(3) does not create a requirement for cohabitation. Instead, s. 48(3) creates a condition which, if satisfied, renders s. 48(1) inapplicable. The trial judge erred in applying s. 48(1) when the facts activated s. 48(3).
Section 48(3) is applicable because Mr. and Mrs. Carrigan were living apart at the time of his death. The language of s. 48(3) makes it clear that the criteria can only apply to a married spouse as the definition of common law spouse is contingent on cohabitation. Since the circumstance contemplated in s. 48(3) exists, s. 48(1) is inapplicable. Where s. 48(1) does not apply, the priority that a spouse receives under the law is nullified.
Therefore, s. 48(6) applies. The fact that Mrs. Carrigan and Ms. Quinn are spouses is secondary to the priority of the named beneficiaries: Mrs. Carrigan and her daughters.
In agreement with Juarinez J.A., LaForme J.A. held that since s. 1 of the PBA allows for two spousal relationships concurrently, s. 48 allows for co-existing spousal relationships.
The two judges disagree on whether the application of s. 48(3) denies both Mrs. Carrigan and Ms. Quinn the death benefit under s. 48(1). Ms. Quinn cohabited with Mr. Carrigan prior to his death. On this basis, she should not be disqualified from receiving the death benefit under s. 48(3). Awarding Ms. Quinn the death benefit is consistent with the purpose of s. 48, which is to provide a priority scheme for death benefits prioritizing spouses who are not living separately at the time of the member’s death.
In contrast to Juriansz J.A. and LaForme J.A., Epstein J.A. holds that the PBA can only apply to one spouse:
s 1 defines “spouse” as being “either of two persons,” not three, and as belonging to one category – legal married or common law (para 93).
This ignores the fact that the use of “or” could just as easily refer to the duality of definitions of spouse Asides from this difference, Epstein J.A’s legal analysis mirrors Juarez J.A’s interpretation. Specifically, Epstein J.A. holds that Mrs. Carrigan is the spouse to whom the benefit would apply. However, the Carrigan’s separation nullifies the spousal priority, which means the benefit should go to the designated beneficiaries under s. 48(6).
In this case, Juriansz J.A. and LaForme J.A. both held that the PBA contemplated the existence of two spouses at the time of the member’s death i.e. a married wife and a common law spouse. The trial judge rejected the division of benefits on the wording of “the spouse” in s. 48(1). This view is supported implicitly by Epstein J.A. in her finding that the PBA only recognized one individual as the spouse of a member. Neither Juriansz J.A. nor LaForme J.A. directly address whether the benefits could be split, which is a shame because there is no explicit prohibition against dividing benefits between contending parties in the PBA. The PBA also does not prioritize married spouses over common law spouses (or vice versa). Therefore, dividing the benefits evenly between Mrs. Carrigan and her daughters and Ms. Quinn is a more equitable remedy.
Moreover, the equity rationale that LaForme J.A. advances is compelling. The law recognizes common law spouses to protect their interests in the absence of formal agreements recognizing the significance of the relationship. As a spouse, Ms. Quinn’s interest matters. While the debate over how s. 48(3) should apply is technically sound, it is hard to see why Mrs. Carrigan’s separation from Mr. Carrigan should exclude Ms. Quinn’s claim to the benefits as a spouse. It makes much more sense to read s. 48(3) and s. 48(1) in tandem as preventing a spouse who is separated from the member from accessing benefits.