On September 6, 2023, in Re Imanpoorsaid, 2023 QCCA 1111, the Court of Appeal clarifies the rules applicable to the return regime as provided for in the Civil Code of Québec, as well as the rules of evidence to be considered for proving same.
In this case, Mrs. Deborah Carol Riddle is appealing the Superior Court’s judgment of December 1, 2017, granting the Application for annulment of the declaratory judgment of death of her spouse, Mr. Hooshang Imanpoorsaid. The principal issues raised before the Court of Appeal are related to the need of service of the Application for annulment to the presumed dead Mr. Imanpoorsaid, to the interpretation of the notion of “return” and to the applicable burden of proof in such a case.
Facts
In 2006, Mr. Imanpoorsaid purchases a life insurance policy from Transamerica Life Canada, now ivari. On February 17, 2008, Mr. Imanpoorsaid leaves his family and never returns. A police investigation fails to find him but reveals several suspicious facts such as: large debts, a flight from Montreal to the Netherlands and an email of explanations for his departure to his family.
More than seven years after Mr. Imanpoorsaid’s disappearance, Mrs. Riddle seeks a Declaratory judgment of death to obtain payment of the life insurance under ivari’s policy. On December 1, 2017, the Superior Court grants Ms. Riddle’s Application and declares Mr. Imanpoorsaid deceased on February 20, 2015, seven years after his disappearance. On September 10, 2018, however, ivari files an Application to annul the Declaratory judgment of death before the Superior Court, alleging that Mr. Imanpoorsaid is in fact not deceased but is currently living in Iran, his native country.
At trial, Judge Geeta Narang grants ivari’s Application and annuls the Declaratory judgment of death. The Court points out that a Declaratory judgment of death applies a presumption of death based on an individual’s absence for seven years. The Court then specifies that this presumption can be overturned, and the Declaratory judgment of death be therefore annulled, if it is proven, on a balance of probabilities, that the person declared dead is in fact alive. The Court concludes that the documents produced by ivari from the Iranian authorities (civil status registry, forms for national identity cards and passports, entries and exits from the country’s borders by the immigration authorities) prove on the balance of probabilities, that Mr. Imanpoorsaid is still alive in Iran.
Analysis and reasoning of the Court of Appeal
In appeal, the Court dismisses Mrs. Riddle’s claim that the Application for annulment of the Declaratory judgment of death could not be heard without a proper prior service to Mr. Imanpoorsaid. Indeed, seeing the specific circumstances of the present case, the failure to serve said Application caused no prejudice to Mr. Imanpoorsaid. Thus, regardless of whether he was absent or present during the current proceedings, the ruling on the Application for annulment of the declaratory judgement of death would have been the same.
The Court then turns to the notion of “return” within the meaning of article 97 and followings of the C.c.Q. The Court establishes that this notion is to be understood not only as the physical return of the person declared deceased to his or her home, but also as the proof establishing that he or she is still alive, even though he or she has not physically returned.
The Court highlights that it would be contrary to the spirit of the Civil Code of Québec for the civil register not to be rectified when a person declared deceased is alive. It is therefore necessary to give a broad interpretation to the notion of “return” to comply with the purpose of the law. Considerations for the administration of justice, as well as public confidence in the veracity of the information contained in the civil register, justify such an interpretation. An interpretation limited to the litteral meaning of the word “return” would rather lead to absurd outcomes and allow the law to be evaded.
On the question of the burden of proof required to rebut the presumption of death, the Court finds it unnecessary to decide. It points out that even if it were to accept Ms. Riddle’s claim that the applicable burden is higher than the mere balance of probabilities, the conclusion of the case at hand would have been the same: The evidence administered by ivari is strong, convincing and uncontradicted. It almost certainly demonstrates that Mr. Imanpoorsaid is alive.