Marcotte, Hogue, Rancourt

Appeal from a judgment of the Superior Court annulling  a declaratory judgment of death. Allowed in part. Application for a declaration of abuse. Dismissed. Appeal from a declaratory judgment of death rendered by the Superior Court. Moot.

On December 1, 2017, a judgment declared that Imanpoorsaid died on February 20, 2015, seven years after his wife, Riddle, saw him for the last time. In 2006, he had taken out a life insurance policy from the insurance company Ivari. On November 29, 2021, the trial judge annulled the declaratory judgment of death. She also dismissed Riddle’s application for abuse due to significant breaches in procedure and ordered her to pay legal costs, including those of Ivari’s expert.

It might have been prudent for Ivari to try and serve Imanpoorsaid with its application for annulment of the judgment that declared him dead, but the judge was correct to find that the failure to do so did not justify dismissing its application. Indeed, the fact that Imanpoorsaid was unaware of the application could not have caused him any prejudice, because, if the application had been served on him, he would have intervened, or not, but in both situations, the judgment would have been the same.

The notion of the term “return” in article 97 et seq. of the Civil Code of Québec (S.Q. 1991, c. 64) must be understood as not only the return of the person declared dead to his or her domicile at the time of his or her disappearance, but also the evidence establishing that the person is still alive, even though he or she has not physically returned. It would be contrary to the spirit of Chapter IV (arts. 103 to 152.1) of the Civil Code of Québec concerning the register of civil status not to rectify it when a person declared dead is alive. To respect the purpose of the statute, it is necessary to interpret the term “return” broadly to include situations where the evidence establishes that the person declared dead is alive, regardless of where the person is and whether the have physically returned. Such evidence must give rise to the annulment of the declaratory judgment of death and, as a corollary, to the rectification of the register of civil status.

Interpreting the notion of “return” restrictively by requiring that the person declared dead physically return, even if probative evidence establishes that he or she is alive, would open the door to absurd situations, contrary to common sense, and would be akin to allowing the statute to be circumvented. Evidence establishing that the person declared dead is still alive therefore constitutes that person’s “return” and may be sufficient to obtain the annulment of a declaratory judgment of death.

In this case, the strong and convincing evidence adduced before the judge shows that Imanpoorsaid is almost certainly still alive, which is sufficient. Last, Ivari had the obligation to show that Imanpoorsaid was alive to obtain the annulment of the declaratory judgment of death. Because it chose to establish this through documents originating from the Iranian authorities, it would have had to pay its expert’s fees, even if Riddle had not contested its application. It therefore seems fair for each party to pay its own expert fees.

Legislation interpreted: article 97 et seq. C.C.Q.

Text of the decision: http://citoyens.soquij.qc.ca