October 18, 2018
Bélanger, Savard, Samson (ad hoc)
Appeal from a judgment of the Superior Court ordering the striking of a condition of a will and ordering payment of an annuity. Dismissed.
The respondent’s de facto spouse died in December 2008. In 2004, he had signed a notarized will bequeathing her his automobile and all of his home furnishings by particular title. The appellant, the deceased’s brother, inherited the residue of the property, subject to the obligation to pay the respondent a minimum annuity of $20,000 for life or until she begins sharing a community of life with another man or becomes incapable. He implemented his deceased brother’s wishes, but in May 2014, he interrupted the annuity payments to the respondent on the grounds that she was sharing a community of life with a new spouse. The respondent brought proceedings, alleging that she had not shared a community of life with another man and asking for the condition of the absence of a community of life to be struck because it was contrary to public order. The trial judge ruled in her favour, finding that she had not shared a community of life with anyone. In his opinion, the respondent was friends with the man who had lived at her house for six months, who, moreover, was not able to [translation] “support” her. The judge also found that the clause of the will providing for the payment of an annuity to the de facto spouse on the condition that she not share community of life with another man is discriminatory and deemed unwritten.
The judge did not err in interpreting the notion of “community of life” in the will as requiring a romantic relationship or the financial support of the respondent by another man. By establishing an annuity, the testator wanted to ensure his spouse’s financial well-being until she began sharing a community of life with another man who would [translation] “support” her. The clause requires a marital relationship, which most often refers to cohabitation, mutual succour, and public representation. Moreover, the evidence supported the judge’s conclusion that the respondent did not share a community of life with another man. Providing a few months of shelter to a person who has lost his home in a fire does not establish a community of life within the meaning of the clause in the will. Moreover, this clause is contrary to public order within the meaning of art. 757 of the Civil Code of Québec (S.Q. 1991, c. 64). It constitutes discrimination based on civil status, which includes the marital status of de facto spouses, thereby infringing s. 10 of the Charter of human rights and freedoms (CQLR, c. C-12), while also violating the respondent’s right to privacy under s. 5 of the Charter, which protects the very personal right to live with a de facto spouse. Finally, Savard J.A. also opines that the clause of the will is contrary to public order and deemed unwritten, but only because it violates s. 5 of the Charter. In her view, this case does not require a consideration of the issues relating to the right to marriage or the notion of “civil status” within the meaning of s. 10 of the Charter.
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