By Michelle Stephenson
In Dagg v. Cameron, Evangeline Dagg gave birth to a son shortly after his father’s death, and made an application for support under the Succession Law Reform Act (the “SLRA”) for both herself and her son.
This application was opposed by the deceased’s ex-wife, who argued that Dagg was not a “dependant” as defined in the SLRA and that even if she was the proceeds of the deceased’s life insurance, which had been designated to his ex-wife, were not available to satisfy any dependants’ claims. This most recent decision revolved around Dagg’s application for interim support until the final hearing.
Part of the argument that Dagg did not qualify as a dependant was that, because she had not been living with the deceased for long nor had his child during his lifetime, she did not qualify as a “spouse” within the meaning of the SLRA.
The court found that under the SLRA, a “child” includes one conceived before and born after the parent’s death. For that reason, as of the date of death, the unborn child was already a dependant. Similarly, while Dagg’s status as a spouse did depend on the live birth of their child, she was the parent of the deceased’s unborn child on the date of his death, and therefore qualified as a spouse.
To preclude a child from claiming support if it was born the day after its parent’s death as opposed to the day before would be illogical, and the court noted that similarly the responsibilities and needs of the mother would be the same in either of these situations. For this reason, her status as a dependant spouse should be the same in both.
Additionally the ex-wife argued that, because she and the deceased were still legally married, Dagg could not be his spouse. However, it was held that there is nothing stopping a person from having two “spouses” for the purposes of support obligations. In this case, the deceased had one spouse to whom he was legally married but separated, and one he had been cohabitating with, who had been pregnant with his child.
Once it was established that Dagg and her son both qualified as dependants, for whom adequate provision had not been made by the deceased, it needed to be determined whether they were able to claim support from the deceased’s life insurance payments.
Ultimately it was found that, despite the fact that the deceased had made an “irrevocable designation” of the insurance policy in favour of his ex-wife, that policy was still available to satisfy dependants’ support claims. The designation had been made pursuant to a temporary order, and the deceased had retained the right, upon the final hearing of their family law application, to argue that it was no longer required or that only a portion of it should be subject to the designation. The Court reasoned that such an order did not guarantee the ex-wife support payments, and certainly did not preclude the deceased’s life insurance money being shared with his other dependants.
Dagg was awarded $20,000 of the life insurance proceeds for interim support for herself and her son, and litigation costs until the final trial.