War of the Wives
In today’s contemporary society, it is not uncommon to see extended families with both a “legal” spouse and a common-law spouse. This presents interesting legal issues for estates practitioners.
In a recent Nova Scotia decision, Canada (Minister of Human Resources Development) v. Tait, 2006 FCA 380, the deceased male CPP contributor’s legal wife and his common-law wife battled over who was entitled to his CPP survivor’s pension.
The legal wife had lived with the deceased for over 20 years, until their separation. After the separation, she raised the couple’s physically-challenged son by herself until the deceased’s death. The two never divorced. The deceased also had a long relationship (over twenty years) with his common-law spouse, which lasted until his death.
Which spouse gets the CPP pension?
The Canada Pension Plan Act seems clear. Further to section 60(1) of the Act, the common-law spouse is entitled to the pension, as she had lived continuously with the deceased for a year prior to his death. The interesting twist was that in his Will, the deceased had actually assigned the pension to his legal spouse. In addition, the common-law spouse had originally supported the assignment and had withdrawn her claim to the pension – she later retracted her withdrawal and re-asserted her claim, leading to the litigation.
The Federal Court of Appeal ultimately held that the Act must be followed and the assignment to the legal wife failed. The legal wife, who had not been cohabitating with the deceased continuously for one year prior to his death, could not contract into the Act’s benefits without the statutory authority to do so. The Court could not give effect to the legal spouse’s compelling moral claim to the pension.
Have a great day!
Bianca
In a recent Nova Scotia decision, Canada (Minister of Human Resources Development) v. Tait, 2006 FCA 380, the deceased male CPP contributor’s legal wife and his common-law wife battled over who was entitled to his CPP survivor’s pension.
The legal wife had lived with the deceased for over 20 years, until their separation. After the separation, she raised the couple’s physically-challenged son by herself until the deceased’s death. The two never divorced. The deceased also had a long relationship (over twenty years) with his common-law spouse, which lasted until his death.
Which spouse gets the CPP pension?
The Canada Pension Plan Act seems clear. Further to section 60(1) of the Act, the common-law spouse is entitled to the pension, as she had lived continuously with the deceased for a year prior to his death. The interesting twist was that in his Will, the deceased had actually assigned the pension to his legal spouse. In addition, the common-law spouse had originally supported the assignment and had withdrawn her claim to the pension – she later retracted her withdrawal and re-asserted her claim, leading to the litigation.
The Federal Court of Appeal ultimately held that the Act must be followed and the assignment to the legal wife failed. The legal wife, who had not been cohabitating with the deceased continuously for one year prior to his death, could not contract into the Act’s benefits without the statutory authority to do so. The Court could not give effect to the legal spouse’s compelling moral claim to the pension.
Have a great day!
Bianca
