The mother pregnant with the deceased’s child is entitled to claim pursuant to section 61 of the Family Law Act.
Released May 26, 2016 | Full Decision [CanLII]
The Defendant brought a summary judgment motion arguing that the mother of an unborn child whose father died as a result of the negligence of another is not entitled to claim as a “spouse” under the Family Law Act (“FLA“). The deceased suffered fatal injuries in a car accident on August 5, 2008. The deceased and the plaintiff, Tracey, had lived together unmarried since January 2008. Tracey was pregnant with the deceased’s child, Tamia, who was born on March 11, 2009.
There was no disagreement that Tamia could pursue an FLA claim because the common law recognizes the property rights of a child en ventre sa mère. The issue was whether Tracey would qualify as a “spouse”. The FLA defined a “spouse” to include two persons who are not married to each other and have cohabited 1) continuously for a period of not less than three years, or 2) in a relationship of some permanence, if they are the natural or adoptive parents of a child. Sweeny J. rejected arguments using the definition of “child” to establish Tracey’s rights under the FLA. Sweeny J. reviewed the FLA and found that the purpose of the Act, its remedial nature, and the acknowledgement that both spouses have an obligation to support the child, support finding that Tracy, as the mother of Tamia, is a person who ought to be entitled to make a claim as a dependent under s. 61. Sweeny J. articulated that the it would be consistent with the legal fiction of en ventre sa mère; the birth of Tamia and the relationship between Tracey and the deceased prior to his death establish the “some permanence” requirement of the definition of “spouse” in Part III of the FLA. Therefore, Sweeny J. granted summary judgment in favour of the responding party, Tracey, by finding she was entitled to pursue an FLA claim.
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