The practice of law is typically premised on evidence and proof of facts. Occasionally, however, legal fictions take precedence.
Declarations of death, for example, are a legal fiction. Six years ago in Threlfall v Carleton University, 2019 SCC 50, the Supreme Court of Canada explained that declarations of death permit a legal fiction to prevail – that after a person has been absent for a legislated period of time, a declaratory judgment of death can be issued to end an absentee’s legal existence and also confirm that “the absentee was, legally speaking, alive” until the declaration was issued. This legal fiction is premised on the notion that:
“Life, at some point, must move on. Payments to and from the absentee that are premised on his or her continued existence cannot be required to continue forever. Pension benefits and life insurance premiums cannot roll on into eternity. Heirs cannot be permanently locked out of the succession. At a certain point, it is necessary to have a state of affairs that can be relied upon in the long term, even if it winds up being erroneous.”
This raises an interesting question. Once a declaration of death has been issued, what does it take to prove that the declaration was erroneous? Can the legal fiction continue in the face of evidence indicating that the person declared to be dead is not dead?
The Supreme Court of Canada grappled with these questions last week in Riddle v ivari, 2026 SCC 9, offering important clarification on the presumption of death, the type of evidence required to rebut the presumption, and the applicable burden of proof. While Canada’s top court was interpreting Quebec’s absence regime, set out in the Civil Code of Québec, the Court’s decision carries practical implications for declarations of death across Canada, including under Ontario’s Declarations of Death Act, 2002.
Background
In this case, Mr. Imanpoorsaid left his home in Quebec under the pretense of taking a business trip to Toronto and never returned, leaving behind significant debts. After he had been missing for eight years, Ms. Riddle, his spouse, successfully obtained a declaratory judgment of death. ivari, Mr. Imanpoorsaid’s insurer, objected to the application, arguing that the circumstances suggested that he had fled rather than died. However, the suspicious circumstances surrounding his disappearance could not prevent the issuance of a declaratory judgment of death.
As a result, ivari later sought an annulment of the declaratory judgment, adducing evidence which indicated that Mr. Imanpoorsaid had relocated to Iran and was living there. Evidence submitted included official identity documentation, civil registry records indicating that Mr. Imanpoorsaid was alive, passport applications with photographs, records of his travels back to Iran, and social benefits he applied for.
In light of this new evidence, the Quebec Superior Court annulled the declaratory judgment of death. This decision was later upheld by the Court of Appeal, and eventually by the Supreme Court of Canada.
The Supreme Court’s Decision
On appeal to the Supreme Court of Canada, Ms. Riddle raised two issues. First, she argued that the insurer’s failure to serve Mr. Imanpoorsaid with the annulment application rendered the proceedings invalid. While the Supreme Court acknowledged that service should have occurred, this omission was not fatal. The annulment could stand, as the failure to serve Mr. Imanpoorsaid did not compromise procedural fairness or the integrity of the judicial process.
The second – and more significant – issue addressed by the Court was the requisite standard of proof for annulling a declaratory judgment of death. Writing for the panel, Justice Wagner rejected the argument that “unquestionable” or near-certain proof was required. In keeping with its decision in FH v McDougall, 2008 SCC 53, the Court confirmed that the “law of evidence does not allow the balance of probabilities standard to be adjusted according to the particular nature of the case.” The ordinary civil standard applies, meaning that a declaratory judgment of death may be annulled where there is clear and convincing evidence demonstrating that it is more probable than not that the missing person is currently alive.
While the actual physical presence of the missing person is the best evidence when seeking an annulment of a declaratory judgment of death, the Supreme Court held that an annulment may be granted on the presentation of other contemporaneous evidence that the person is alive – particularly where corroborated – especially in cases where the person’s disappearance was voluntary.
Declarations of Death as Legal Fictions
Consistent with the Court’s decision in Threlfall, the Supreme Court reaffirmed in Riddle that a declaratory judgment of death is fundamentally a legal presumption – that it “presumes the absentee’s death; it does not establish it.”
This framing has important implications. Because a declaratory judgment of death rests on a rebuttable presumption when there is no proof of death, it is not a permanent source of entitlement. The presumption must “yield” when credible evidence demonstrates that the individual is alive, thereby rebutting the presumption.
In terms of the evidence required to annul a declaratory judgment of death, the Supreme Court noted that there must be evidence which establishes that the person was alive after the judgment was granted. That said, the evidence need not be strictly contemporaneous with the application. The court is to assess whether the evidence, viewed cumulatively, makes it more probable than not that the individual is alive.
Implications for Ontario and Beyond
Although Riddle was determined under Quebec civil law, the Supreme Court’s decision is relevant to Ontario. Under subsection 4(2) of the Declarations of Death Act, 2002, an interested person may, with leave of the court, move for an order revoking a declaration of death “if new evidence or a change in circumstances justify reconsidering the matter.” Since the legislation does not expressly address the temporal scope of evidence necessary to establish when a declaration of death ought to be revoked, the Supreme Court’s decision offers useful guidance.
Several practical takeaways emerge:
- Revocation requires current evidence of life: An applicant ought to adduce evidence proving that the missing individual was alive after the declaration of death was granted.
- Corroboration is critical: A single piece of evidence may not suffice to revoke a declaration of death; a body of consistent evidence will carry greater weight.
- Pre-declaration evidence remains relevant: While evidence confirming that the individual was alive before the declaration of death was granted will likely be insufficient on its own to revoke a declaration, it may strengthen the inference of continued life when combined with post-declaration evidence.
- Evidence is assessed in light of the circumstances, including the voluntariness of a disappearance: The courts may find that a person is still alive – even if the missing person does not attend court – where the circumstances suggest that their absence is intentional.
- Procedural imperfections may not be fatal: Where fairness is preserved, courts may decline to nullify proceedings to revoke or set aside a declaration of death on the basis of technical defects.
Ultimately, it appears that the success of an application to annul or revoke a declaration of death will turn on the quality, coherence, and contemporaneity of evidence provided. So long as that evidence establishes that it is more likely than not that the person is still alive, the legal fiction of death ought to give way.
Thank you for reading and have a wonderful rest of your day!
Suzana.