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Unborn Children and Dependant Support

In a recent decision, Dagg v. Cameron Estate (2015), the court was asked to consider whether a child that was in utero at the time of his father’s death had any standing to bring a claim for support against the father’s estate. The basic facts are as follows for unborn children and dependant support.

Stephen Cameron died, leaving a surviving partner, Evangeline Dagg, who was 8 months pregnant with their son to be, James Cameron. Prior to his relationship with Evangeline, Stephen was married for 8 years to his first wife Anastasia with whom he had two children.

Stephen’s will named Evangeline as his sole beneficiary. However, at the time of his death, Stephen did not have any significant assets in his estate. He did, however, have a million dollar life insurance policy. This is where things get interesting.

Prior to his death, Anastasia obtained a temporary court order which required that Stephen pay her interim child and spousal support. The order also required Stephen to “maintain Anastasia as irrevocable beneficiary on any life insurance policy” as security for his support obligation.

Stephen initially complied with the court order and named Anastasia as his beneficiary. After his diagnosis with cancer, Stephen changed the designation (he left Evangeline 53.6 per cent and left the remaining balance to Anastasia and his children with her). Anastasia found out about the beneficiary change and then obtained an order requiring him to restore her as the sole beneficiary.

When Stephen died, Evangeline brought a claim for support for herself and the baby (born after Stephen’s death). As part of the claim Evangeline sought to include the life insurance policy as a source for paying support.

By way of background, the Succession Law Reform Act (“SLRA”) allows a dependent (i.e., a spouse and a child) to bring a claim against the estate of a deceased person who is obligated to pay support. The Act allows the dependent to include as money to be paid out in satisfaction of the claim insurance proceeds, which are not otherwise part of the deceased’s estate.

The claim for support was opposed by Anastasia who raised some interesting arguments in her opposition to the claim, essentially challenging whether Evangeline and the child where “dependants” within the meaning of the SLRA.

First, Anastasia argued that Evangeline was not the deceased’s spouse since he remained married to Anastasia at the time of his death. The court found that a deceased person can have two spouses within the meaning of the SLRA (i.e., one legally married and one common law).

Second, Anastasia suggested that Evangeline was not in fact a common law spouse. The SLRA defines a “spouse” to include two persons who are legally married to each other, who have resided together continuously for not less than three years or in a relationship of some permanence, if they are the natural or adoptive parents of a child. Stephen and Evangeline were together for less than three years so the dispute centered on whether the two were the natural parents of a child.

Since James was not alive at the time of Stephen’s death, Anastasia suggested that Evangeline was not a spouse since she and Stephen were not the parents of a child at the time of his death. The court rejected this argument, pointing out that “to interpret the Act the way Anastasia suggests would mean that if a child was born, for example, the day before the death of one parent, the surviving parent would be a spouse, but not if the child was born two days later—clearly an inequitable result.”

Finally, Anastasia challenged whether Stephen owned the life insurance policy within the meaning of the SLRA. The Act allows a support payment to be taken from “any amount payable under a policy of life insurance effected on the life of the deceased, and owned by him or her.” Since the insurance policy in question was subject to a court order securing the support payment to Anastasia, Anastasia suggested it was not “owned” by the deceased and was therefore not subject to any claim. The Court rejected this argument, finding that the policy was clearly owned by the deceased.

In the end, Evangeline was successful on the motion and was awarded interim support, with the issue of the final entitlement of each spouse and child being left for a trial.

The case is an interesting precedent in that the dependant child was unborn when the deceased died. Since the child was born alive, his mother became a spouse of the deceased at the time of birth by virtue of the definition of a spouse in the SLRA (two persons in a relationship who have a child). Presumably, Evangeline’s claim would have been rejected if the child was not born alive. Further, it is interesting to consider how the courts will treat cases where the child was not conceived at the time of one parent’s death, for instance, in the event a child is born as a result of in vetro fertilization.

Thanks for reading,