“…there is nothing that precludes … being in a spousal relationship with more than one person at a time…”

The title of this article is an excerpt from Justice LaForme’s dissent, in an Ontario’s Court of Appeal decision¹ dealing with the multiple spouse conundrum in the context of Ontario’s Pensions Benefits Act.²   This is not an endorsement of bigamy.³ It is addressing a growing social phenomenon.

Notwithstanding the prohibition against bigamy and polygamy⁴ there are a series of Ontario cases that recognize the reality that in our society people sometimes involves themselves in marriage or marriage like relationships with more than one spouse at the same time.  Those relationships create legal obligations that are not discharged at death.   For example, the Succession Law Reform Act, R.S.O. 1990, c. S.26  (“SLRA”)⁵ entitles a spouse to sue if the deceased failed to make adequate provision for his/her support.  The SLRA defines a spouse to include either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years or were in a relationship of some permanence, if they are the natural or adoptive parents of a child.   Arguably, the fact that deceased was also legally married to spouse #1 should have no effect on common law spouse #2 qualifying as a dependant and being entitled to support obligations under the SLRA. Let’s take a look at how the courts have dealt with the “multiple spouse conundrum”.

This first case for our discussion is under the Family Law Act, R.S.O. 1990, c. F.3  (“FLA”),⁶    In Mahoney v. King⁷ a mistress successfully sued a married man for support because the court found that she was a common law spouse⁸. The FLA and SLRA use the same definition of spouse and the same principles would apply had the married man died and his common law spouse sued for support under the SLRA.

In the context of the SLRA, the issue has been specifically addressed in Saveski v Carstensen⁹ Su v Lam ¹⁰ and   Quinn v Carrigan¹¹.  In Saveski, the court states that the fact that the applicant for dependant’s support was still married, maintained a mailing address at his former matrimonial home and still had an ownership interest in that home did not undermine his status as a common law spouse under the SLRA.¹² In Su v Lam, both members of the purported common law relationship were legally married. The court found that the existence of the two marriages was of some evidentiary significance,¹³ but did not negate the existence of the common law conjugal relationship between the parties for the purposes of the SLRA or the FLA.¹⁴

Saveski and Su v Lam provide a basis for the argument that support obligations to a common law spouse may still exist despite the deceased being legally married at the same time. However, in both these two cases, the respective common law spouses who were legally married were also, generally speaking, estranged from their legal spouses. It is therefore interesting to look at the court’s treatment of a “double spouse” scenario where the non-divorced common-law spouse continues to provide economic support and continues to have a relationship with their legally married counterpart. This was the situation in the Quinn v Carrigan¹⁵ series of cases.

The Quinn v Carrigan series of cases involves a dispute between Mrs. Carrigan, the legally married wife of the deceased, and Ms. Quinn, the common-law spouse of the deceased. The deceased was Mr. Carrigan, a man who died leaving “much unfinished business, financially, emotionally, and legally.”¹⁶ Mr. Carrigan was married to Mrs. Carrigan from 1973 until his death in 2008. However, it was found as a fact that Mr. Carrigan began living with Ms. Quinn in a conjugal relationship no later than January 2000 until his death. Despite Ms. Quinn entering Mr. Carrigan’s life and their ongoing serious relationship, Mr. Carrigan continued to pay Mrs. Carrigan’s expenses up to the day he died.¹⁷

At first, Ms. Quinn, the common law spouse of the deceased, pursued the pension death benefits of the deceased.¹⁸ Ms. Quinn argued that she was a spouse for the purposes of section 48 of the Pensions Benefits Act .¹⁹ The case turned on the statutory interpretation of the PBA, and specifically the definition of spouse in section 1(1) and 48 of the PBA²⁰.

The Ontario Superior Court found that the definition of “spouse” in the PBA applied to both Mrs. Carrigan and Ms. Quinn, the common law spouse.²¹ In reflecting on the wording of the PBA, the Superior Court states that “[t]he legislature has made a policy decision that has taken into account all the competing interests of various classes of spouses who survive a plan member.”²² Although the Superior Court decision was reversed at the Court of Appeal, the Superior Court’s acknowledgement that the definition of “spouse” can include two spouses of the deceased and the Superior Court’s comments that various classes of spouses may exist certainly show that no issue was taken with an individual having two spouses at one time.

The Court of Appeal,²³ in hearing the appeal of the pension benefits issue, displayed a similar acceptance towards an individual having two spouses. In explaining how the definition of “spouse” in the PBA poses difficulties, the Court of Appeal noted that the statutory definition does not indicate that a legal marriage takes priority over a common law marriage, or vice versa.²⁴ The Court of Appeal also accepted the trial judge’s finding that this was a situation where the pension benefits member had two spouses.²⁵ In a dissenting decision, Justice LaForme’s comments are also conducive to an individual validly having two spouses under the PBA:

“On a plain reading of the two-pronged definition, there is nothing that precludes a member from being in a spousal relationship with more than one person at a time.The definition, which uses the phrase “either of two persons”, makes clear that one must look at the relationship between the two persons in question to determine whether the definition of spouse is met. It does not, in my view, preclude the possibility that a person may be a spouse in relation to two different persons.”²⁶

As in the Superior Court, the Court of Appeal decision on the pension benefits issue demonstrates that for the purposes of entitlement to a pension the deceased may have more than one spouse.

After the Court of Appeal decided to award the deceased’s pension benefit to Mr. Carrigan’s legal wife, the common law spouse, Ms. Quinn, took steps to pursue her claim for dependant’s relief under Part V of the SLRA.²⁷ The comments made at the Divisional Court level are important for this discussion, as the Divisional Court was faced with deciding the entitlement of a common law spouse whose relationship with the deceased was shadowed by the deceased’s continuing relationship with and provision of support for his legal wife.

The Divisional Court provides a four-step analysis to determine the amount of support owed to dependants in Part V claims.²⁸ The four-step analysis involved valuing and balancing the claims of each dependant of the deceased. While both the legal wife and the common law spouse were found to be dependants, the Divisional Court’s valuing and balancing of their claims does not have any comments on one spouse being “more of a spouse” than the other.

The Divisional Court makes interesting comments in this regard when it came to analyzing the intentions of the deceased for the distribution of his estate. The Divisional Court points out that the deceased’s relationship with Mrs. Carrigan, his legal wife, was the defining relationship in his life, and he treated it as such.²⁹ The Divisional Court goes on to point out that the deceased continued to have a strong emotional relationship after the marital separation, and that the deceased had promised to take care of Mrs. Carrigan for the rest of her life. The Divisional Court then delves into the common law relationship that the Deceased had with Ms. Quinn, and states as follows:

“Mr. Carrigan’s relationship with Ms. Quinn was different. This does not mean that it was a “lesser” relationship. There was evidence led at trial by Ms Carrigan to the effect that she was the “real wife”. In Ms Carrigan’s eyes, Ms Quinn was a “mistress”, a part of Mr Carrigan’s “bar life” — really a flaw in Mr Carrigan’s character. That is most unfair to Ms Quinn. It is very clear that Mr Carrigan had an important emotional and social relationship with Ms Quinn: they were “spouses” in every sense of that word. They made their lives together, and at the time of Mr Carrigan’s death they shared an expectation that they would continue together as spouses for the rest of their lives. The relationship began at a time when Mr Carrigan was financially secure — a security he had earned during his years with Ms Carrigan. Mr Carrigan recognized this distinction in the relationships by continuing to share his wealth equally with Ms Carrigan after separation, and by not doing so with Ms Quinn. By his conduct, Mr Carrigan treated Ms Quinn as a dependant and not as a financial partner. None of this means that the relationship between Mr Carrigan and Ms Quinn was “inferior” to the relationship with Ms Carrigan, or that Ms Quinn is “less deserving”. It was different.” [emphasis added]³⁰

This passage says a great deal about the court’s perspective on individuals maintaining two spouses at once. Two relationships can co-exist, and support obligations under the SLRA will certainly apply to a common law spouse if the indicia of cohabitation are present. Practically speaking, the courts understand that in today’s society people can take part in a wide variety of relationships and a person may leave varying classes of dependants behind after their demise.