Note: This blog was originally published on October 15, 2012 and has been updated by Adin Wagner on September 24, 2021.
A more comprehensive treatment of the issues in this article was presented by this author in an article published in the Estates and Trusts Pension Journal1.
Harry, 85, wants to marry 75-year-old Esther, but he does not want to lose his widower’s pension. They agree not to obtain a marriage license or register the marriage, but instead to have only a ritual ceremony in a rabbi’s office. Harry dies and his will leaves his assets to his children. Does an only religious marriage ceremony give Esther any rights to Harry’s estate?
If the ceremony occurred before January 1, 2022, Esther’s lawyers would argue that by virtue of the Succession Law Reform Act (“SLRA”), a will is revoked by a legal marriage. When a person dies and he or she has no will then the person is said to die intestate. Under the laws of intestacy in Ontario, therefore, Esther should get a preferential share of the estate (the first $350,0002) and a portion of the balance. The reason this line of argument is dependent on the ceremony occurring before January 1, 2022 is because the Accelerating Access to Justice Act repeals the provisions providing for the revocation of a will upon legal marriage as of January 1, 2022.
Still working with the assumption that the ceremony occurred before January 1, 2022, the lawyer for Harry’s children would point to Deborah v Deborah 1999 CarswellOnt 5; 167 D.L.R. (4th) 759, 116 O.A.C. 196, 43 R.F.L. (4th) 179.This case went to the Ontario Court of Appeal, which ruled that a religious Jewish marriage alone would not qualify a spouse for property rights under the Family Law Act. Since the definition of “spouse” in the legislation that deals with revocation of wills by marriage (the Succession Law Reform Act) is virtually identical with the Family Law Act Harry’s children would argue that a ritual marriage alone does not revoke Harry’s will.
In the end, in my view, the issue would likely be decided on the basis of s. 31 of the Marriage Act, R.S.O. 1990, c. M.3, which states: “If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act … and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage …” In Deborah v Deborah the court did not accept that the marriage was solemnized in good faith because they purposefully did not intend to be in compliance with the Act. If Esther, in good faith, believed that her ritual marriage was being conducted pursuant to Ontario law and she lived with Harry as husband and wife, then it is arguable that the legislation would deem the union to be a valid marriage that would revoke the will.
Irrespective of whether the marriage ceremony predated January 1, 2022, Esther, as a common-law spouse, may still be entitled to spousal support as a dependant under the Succession Law Reform Act so long as they had lived together as man and wife continuously for a period of not less than three years. Under the legislation, the court would determine the appropriate amount of support by considering how Esther and Harry organized their relationship as well as Esther’s needs and circumstances.
Esther might also have a quantum meruit claim if she could demonstrate that the estate has been unjustly enriched, she suffered a corresponding loss and there was no requirement of law that the estate should receive such a benefit. For example, if Esther gave up her job to take care of Harry for the last five years of his life – and she was unpaid for the service – then she could argue that, if not for her, the estate would have had to institutionalize Harry at a cost of $60,000 per year. She may argue that she did more than could normally be expected from a wife and that she lost earnings comparable to the unjust enrichment of the estate.
There are different reasons why some individuals in Ontario may choose to solemnize their marriages outside of the Marriage Act. Perhaps their faith permits them to take more than one wife even though polygamy is not permitted in this jurisdiction. Perhaps there are greater entitlements to government benefits for singles. It could just be that they want to avoid the property rights that flow from a legal marriage. For family law practitioners or estate litigators dealing with such a case, the first prudent step may be to review s. 31 of the Marriage Act, and determine if the parties intended to comply with the Act. The next step would be to review the facts to determine if your client qualifies as a common law spouse and what rights flow from that status.3
- Estates and Trusts Pension Journal, Vol 28, 2, March 2009, pg. 129 ↵
- A spouse’s preferential share of the estate in an intestacy is $350,000 pursuant to s. 45 of the SLRA. As per the newly implemented O. Reg. 54/95, $350,000 is the prescribed amount for the preferential share of the estate of anyone who dies on or after March 1, 2021. For the estates of those who die before March 1, 2021, the prescribed amount for the preferential share will still be $200,000 ↵
- See the following blogs