For the purposes of determining support claims under Ontario’s Succession Law Reform Act (“SLRA”), can a deceased have had more than one spouse at the same time? The recent decision of Blair v. Cooke (Allair Estate) raised this issue. In this case, Ingrid Blair brought an application for interim support against Steven Allair’s estate, and filed materials detailing the history of their lengthy relationship. Based on that material, Justice Belleghem found that “it could be inferred” that Ingrid and Steven lived “as ‘common law spouses’.”
Among other things, Ingrid’s material revealed that Ingrid and Steven “maintained the household jointly”. That household was, Justice Belleghem specified, “the one in Mississauga”. The distinction was necessary as apparently Steven also maintained another household, in Scarborough, with Mary Cooke at around the same time. Based on Mary’s material filed in response to Ingrid’s claim, Justice Belleghem found that it “could also be inferred” that Mary was Steven’s common law spouse.
Since her relationship with Steven, and Ingrid’s relationship with Steven, were nearly identical, Mary argued that Ingrid should not receive support: if both she and Ingrid were recognized to be Steven’s spouses this would be tantamount to finding that Steven had been in a “bigamous” relationship.
Justice Belleghem disagreed, and held that Mary was not precluded from obtaining support from Steven’s estate just because Ingrid obtained support. It did not matter that ordering such support necessitated the court finding that both Ingrid and Mary were Steven’s spouses. At any rate, Justice Belleghem noted that Steven was not in a bigamous relationship as he “was not lawfully married to either one of the claimants”.
Justice Belleghem neatly sidestepped the issue that, while Steven was not in a bigamous relationship, he might have been in a polygamous one: our Criminal Code defines polygamy as including “any kind of conjugal union with more than one person at the same time”. The criminal law is silent about what a “conjugal union” means. Under the SLRA, the test for determining whether a relationship is “conjugal” requires that a court (as Justice Belleghem did in this case) look at a variety of factors, including shelter, sexual and personal behaviour, social interaction, societal attitudes towards the couple, provision of economic support, and children.
Oddly enough, then, the judge who hears the support application may find that both Ingrid and Mary were Steven’s spouses — thereby seemingly recognizing their status as spouses, even though it would have been a criminal offence for Steven to have had two spouses. Bizarre? Maybe, but ultimately it is fair that the law holds a person responsible for supporting their dependants, regardless of the legality of the relationship with those dependants. What might not be fair is the fact that the law as it stands considers Steven’s relationships with Mary and Ingrid to be an indictable offence. Here’s hoping that British Columbia’s Polygamy Reference will clarify the law in this area.
Thanks for reading,