Love and marriage, wills and pensions

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Unlike the social and legal situation of parents and children in the past, today mothers and fathers have the same rights and obligations with regard to their children. The rights of parental authority and the obligations to maintain, support and educate belong equally to each.

The law tries to keep up with social change but there are cases that do get overlooked.

A couple obtained a divorce judgment in 1982. At that time, a divorce judgment was conditional for at least three months, until one of the parties applied to the court to have it declared permanent (irrevocable).
Until that time, the divorce was suspended and the parties were considered married. The husband had received a copy of the divorce judgment and believed he was divorced. He stated on his income tax returns and in his will that he was divorced. His wife realized the divorce judgment had never been made permanent but she had not done anything about it.

He lived common-law with another woman from 1990 until his death in 2003. In his will, he named his common-law wife liquidator of his estate and beneficiary of all his assets.
Under Quebec law, the widow’s pension is payable to the wife. It can be payable to a common-law wife, but only if there is no previous wife. When the common-law wife applied for the widow’s pension, it was refused because the deceased had never been divorced. The court upheld the decision of the pension board and said the fact that the deceased believed he was divorced, that he stated in the will that he was divorced and that the common law relationship had lasted 13 years, were all irrelevant.  The first wife got the pension.

At one time it was common to bestow a gift to a future wife in a marriage contract. A frequent amount was $10,000, to be paid at the time of the donor’s death. This gift was irrevocable; it could not be nullified. This is what happened in the case of a couple married in 1956 and divorced in 1973.

The divorce judgment became permanent in 1974 and the husband remarried in 1975, once again signing a marriage contract. That relationship lasted until 1980. This second marriage was dissolved by divorce in 1986 and the parties signed an agreement settling all matters between them, such as support, division of property and provisions in the marriage contract.

In 1980, the husband commenced living common law until his death in 2010. In 2005 he made a will leaving everything to his common-law wife. After his death, the first wife claimed her $10,000 gift under the marriage contract from his estate. The court held that the law had changed several times between 1956, when the marriage contract had been signed, and the date of death in 2010.

In 1956, a gift given in a marriage contract could not be revoked. As of 1994 for such a donation to be irrevocable it was necessary to declare that it was so. The deceased had entered into an agreement with the second wife at the time of his divorce but he had not done so with his first wife. There had to have been a clear intention in his will to revoke that particular gift; the general declaration found in most wills that all previous testamentary dispositions were revoked was not sufficient.

The gift to the first wife, irrevocable in 1956, could be revoked in 2010, but the deceased had failed to do so. The estate was obliged to pay.

In the above cases old law and new law seemed to collide and the old law won. The old law came into effect at a time when marriage was forever, marriage contracts could never be changed, gifts under the marriage contract were permanent and there was no divorce.

Today the institution of marriage is rarely forever, marriage contracts can be altered, gifts given in the marriage contract can be revoked and divorce is frequent.  What we do have is a strong belief in equality between husband and wife, between man and woman, between mother and father.

So when a policeman became a new father and took paternity leave under the Quebec parental insurance act, he also claimed an additional salary indemnity provided for in his collective agreement. But the collective agreement only provided for such addition indemnity in cases of maternity leave or adoption. He claimed discrimination under Section 10 of the Quebec Charter of Rights and Freedoms, which states that there can be no discrimination with regard to a person’s rights based on his sex (among other things). The tribunal held that those on paternity leave had the same rights as those on maternity leave and he received the additional indemnity.

So to all the men out there, fathers or not, enjoy today’s benefits of equality and keep a look out for those situations lying dormant from a less equal past.

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