CITATION: Awad v. David, 2026 ONSC 3488
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MAY AWAD and ELIAS AWAD, Applicant
AND:
ANGELA DAVID, Respondent
BEFORE: Justice B. Dietrich
COUNSEL: Ohannes Kechichian and Pierre–Luc Losier, for the Applicants
Ayaz Mehdi, for the Respondent
HEARD: March 12 and 13, 2026
ENDORSEMENT
1This application involves the entitlement to the commuted value of certain retirement funds (the “Pension Funds”), currently being held by the Ontario Teacher’s Pension Plan (the “OTPP”) administrators.
2The Pension Funds are payable following the death of the late Hamid Aouad (“Mr. Aouad”), a retired schoolteacher.
3Pursuant to the terms of the OTPP, the Pension Funds are payable to Mr. Aouad’s surviving spouse, if any.
4At issue is whether the respondent, Angela David (“Ms. David”), is Mr. Aouad’s surviving spouse.
5If Ms. David is not Mr. Aouad’s surviving spouse, the OTPP benefits would be payable to Mr. Aouad’s estate (the “Estate”).
6Because Mr. Aouad died intestate, leaving no legally married spouse, descendants, or parents, Mr. Aouad’s nine siblings, who include the applicants, May Awad (“May”)1 and Elias Awad (“Elias”) (collectively, the “Applicants”), are the beneficiaries of the Estate.
7For the reasons that follow, I find that Ms. David was Mr. Aouad’s common law spouse at the time of his death and, as such, she is entitled to the Pension Funds.
Background Facts
8The Applicants and Ms. David present very different versions of the facts, generally, but they do not dispute the following:
a. Mr. Aouad was a schoolteacher in the Greater Toronto Area, who had retired from teaching by the time of his death.
b. Mr. Aouad died of prostate cancer on February 1, 2020, at 69 years of age. He died in hospital following the final phase of a medical treatment that began in January 2020.
c. Mr. Aouad was unmarried and had no children.
d. Mr. Aouad was survived by Ms. David and his nine siblings, being the Applicants (May and Elias), Nohad Helou (“Nohad”), Youmna Aouad (“Youmna”), Bassem Awad (“Bassem”), Camille Awad (“Camille”), Cecilia Lahoud, Souad Aouad (“Souad”), and Simon Aouad (“Simon”). Simon has since died.
e. All of the siblings are non-residents of Canada. The Applicants reside in the United States of America.
f. At the time of his death, Mr. Aouad was living with Ms. David in a rented two-bedroom apartment at 11 Goldfinch Court, in the City of Toronto, Ontario (the “Apartment”).
g. Mr. Aouad and Ms. David lived together in the Apartment for approximately 28 years prior to Mr. Aouad’s death.
h. Ms. David has a daughter, Susan Garcia (“Susan”), who lived with Mr. Aouad and Ms. David in the Apartment for approximately ten years after she immigrated to Canada from the Philippines in 2000.
i. Mr. Aouad was diagnosed with prostate cancer in 2011.
j. Ms. David retired from her job at Griffin House (now Thistle Printing Limited) in 2016.
k. Following his cancer diagnosis, Mr. Aouad received long term disability payments from the Ontario Teachers Insurance Plan for two years from May 1, 2017 to May 1, 2019.
l. Shortly before Mr. Aouad’s death, some of his siblings, namely Souad, Bassem, and Youmna, came to visit him in the hospital. With their assistance, Mr. Aouad distributed approximately $470,000 of his liquid assets to his siblings, Nohad, Souad, Bassem, and Youmna. Of this amount, Ms. David received a cheque for $25,000. The Applicants refer to this amount as “severance pay”.
m. Following Mr. Aouad’s death, Bassem contacted Ms. David via WhatsApp, an instant messaging app, and asked her to vacate the Apartment as the lease would expire at the end of the month in which Mr. Aouad died.
n. Ms. David did not attend Mr. Aouad’s funeral.
o. Ms. David, Susan, Susan’s wife, Elena Garcia (“Elena”), and Ms. David’s sister packed up the Apartment.
p. At the time of his death, Mr. Aouad had not designated a beneficiary of the Pension Funds.
q. Following Mr. Aouad’s death, Ms. David wrote an undated letter to the OTPP and claimed to be the surviving common law spouse of Mr. Aouad and, therefore, the beneficiary of the Pension Funds payable on Mr. Aouad’s death. In support of her claim, Ms. David provided documentary evidence including a) a beneficiary designation form on which she had designated Mr. Aouad as the beneficiary of her registered retirement savings plan in 1995; b) receipts showing that Mr. Aouad had bought an airline ticket for her in 1993, and that he had wired money to her while she was visiting family in the Philippines in 1996; c) photographs of her and Mr. Aouad together; and d) greeting cards addressed to them as a couple.
r. In a letter dated June 30, 2020, Ann Volpe (“Ms. Volpe”), for the Senior Manager and Legal Counsel, Pension Law & Policy for the OTPP, wrote to the Estate Trustee During Litigation for the Estate, David Bruce Thomas (“Mr. Thomas”). In the letter, Ms. Volpe stated as follows regarding Mr. Aouad’s pension benefits:
Under the Plan, there are only two possible payments Ontario Teachers’ can make with respect to Mr. Aouad’s post-retirement death benefits:
To Mr. Aouad’s married or common law spouse on the date the first installment of his pension was due, May 31, 2019; or
To the Estate of Mr. Hamid Aouad, if Mr. Aouad did not have an eligible married or common law spouse on the date the first installment of his pension was due.
s. In the same letter, Ms. Volpe advised that based on the evidence provided, the OTPP administrators had concluded that Mr. Aouad had a common law spouse on the date the first installment of his pension was due (May 31, 2019). Ms. Volpe also asked Mr. Thomas to let the OTPP know if the Estate objected to their conclusion and to provide any competing evidence to show that Mr. Aouad did not have a common law spouse on that date.
The Applicants’ Position
9The Applicants submit that Ms. David was not the common law spouse of Mr. Aouad. Rather, she was his housekeeper, as that is what Mr. Aouad had told them. They submit that Mr. Aouad took pity on Ms. David because she had a disabled daughter and, out of kindness, he permitted her, and her daughter, for a time, to live with him in the Apartment, rent-free, in exchange for Ms. David providing housekeeping services. Ms. David’s services would eventually include caring for Mr. Aouad as his health deteriorated.
10The Applicants further submit that Mr. Aouad had not declared to the OTPP, in writing, that he was in a marriage or conjugal relationship with Ms. David on the date the first installment of his pension was due, which was May 31, 2019. The Applicants assert that this declaration was a prerequisite to Ms. David’s entitlement to the Pension Funds, and because it was not met, Ms. David cannot be the beneficiary of the Pension Funds.
11The Applicants also submit that there is no evidence from any of Mr. Aouad’s many siblings, other relatives, or colleagues from teaching that Mr. Aouad and Ms. David enjoyed a romantic or conjugal relationship at any time. The Applicants submit that Mr. Aouad and Ms. David did not share the same bedroom in the Apartment, that they only took a trip together once, and that there are very few photographs of them together. Further, the Applicants submit Ms. David’s actions around the time of Mr. Aouad’s death, and the living arrangements she shared with Mr. Aouad, prevent her from meeting the legal definition of “spouse” under the Pension Benefits Act, R.S.O., c. P.8 (the “PBA”), and Ontario law.
Ms. David’s Position
12Ms. David’s submits that she is undeniably the common law spouse of Mr. Aouad. She submits that she had been in a romantic relationship with him for more than 30 years prior to his death. Her evidence is that she met him through a mutual friend, Lorna Cabasag (“Lorna”), while she was working at Griffin House in downtown Toronto. Mr. Aouad and Ms. David began dating, and within a couple of years, in 1992, they moved into the Apartment, where they lived together until Mr. Aouad’s death. For part of that time, Ms. David’s daughter, Susan, lived with them in the Apartment as well, and they lived as a family. During their 30-year relationship, she only travelled to the Philippines four times to spend time with her family. Ms. David submits that Mr. Aouad’s siblings knew about her spousal relationship with their brother and they accepted it up until the time of his illness. At that time, their behaviour changed, and they became more focused on the succession of his property.
13Ms. David submits that her status as Mr. Aouad’s long-term common law spouse is confirmed through documentary evidence and the testimony of reliable, impartial witnesses. These witnesses include Robert Sarra (“Mr. Sarra”), the building superintendent at the Apartment complex, friends, colleagues, Susan, and Elena. By contrast, Ms. David submits that the Applicants rely on their own evidence and the evidence of other siblings of Mr. Aouad, all of whom are non-residents of Canada, none of whom ever resided with Mr. Aouad, and none of whom is impartial. Further, Ms. David submits that her evidence is corroborated by authentic documentation.
14Ms. David also submits that there is no evidence of any employment arrangement, including regular payments of salary, because there was no such agreement, in writing or oral.
Issues
15The issues in this matter are as follows:
a. Is Ms. David a “surviving spouse” for the purposes of the PBA, such that she is entitled to the Pension Funds?
b. Was it necessary for Mr. Aouad to designate Ms. David as his common law spouse on the date on which he became entitled to pension benefits pursuant to the PBA in order for her to receive the Pension Funds as his surviving spouse on his death?
Law
16Subsection 1(1) of the PBA defines “spouse” as follows:
“spouse” means, except where otherwise indicated in this Act, either of two persons who
a) are married to each other, or
b) are not married to each other and are living together in a conjugal relationship,
i) continuously for a period of not less than three years, or
ii) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act;
17Ms. David bears the onus to prove that she and Mr. Aouad were common law spouses living in a conjugal relationship: Nikitina v. Huynh, 2025 ONSC 690, 176 O.R. (3d) 535, at para. 87. Proof must be demonstrated on a balance of probabilities.
18In Molodowich v. Penttinen, 1980 CanLII 1537 (ON HCJ), 17 R.F.L. (2d) 376, at para. 16, the court identified the following seven factors that are relevant to determining whether two people were in a conjugal relationship:
(1) SHELTER:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
(3) SERVICES:
(a) What was the conduct and habit of the parties in relation to:
(b) Preparation of meals,
(c) Washing and mending clothes,
(d) Shopping,
(e) Household maintenance,
(f) Any other domestic services?
(4) SOCIAL:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
(5) SOCIETAL:
What was the attitude and conduct of the community towards each of them and as a couple?
(6) SUPPORT (ECONOMIC):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) CHILDREN:
What was the attitude and conduct of the parties concerning children?
19In the case of Gajic v. Lazeo, 2019 ONSC 4690, at para. 55, the court summarized the direction of the Supreme Court of Canada with respect to the meaning and classification of “conjugal” relationships as follows:
55The Supreme Court of Canada has provided direction with respect to the meaning and classification of ‘conjugal’ relationships. Specifically, in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, the Court:
(a) endorsed the generally accepted characteristics of a conjugal relationship enumerated in the case of Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON HCJ), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) including: shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple;
(b) stressed that these identified elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal: in order to come within the definition, couples are not required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”; and
(c) opined that the weight to be accorded the various elements or factors to be considered in determining whether a couple is in a conjugal relationship will vary widely and almost infinitely and that the approach to determining whether a relationship is conjugal must be flexible: M. v. H., at paras. 59-61.
20The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case: Molodowich, at para. 16, citing Warwick v. Ontario Minister of Community and Social Services (1978), 1978 CanLII 1300 (ON CA), 21 O.R. (2d) 528 (C.A.); Lukic v. Zaban, [2012] OJ No. 5256, 2012 ONSC 6078, citing M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, at para. 59.
21Section 13 of the Evidence Act, R.S.O. 1990, c. E.23, provides that in an action against heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment, or decision on his or her own evidence in respect of any matter occurring before the death of a deceased person, unless such evidence is corroborated by some other material evidence.
22The Court of Appeal for Ontario, in Burns Estate v. Mellon, 2000 CanLII 5739 (ON CA), 48 O.R. (3d) 641, at para. 29, held that corroboration required by the Evidence Act must be evidence independent of the party’s own sworn evidence that demonstrates that the party’s position on a material issue is true.
Analysis
Issue 1: Is Ms. David a “surviving spouse” for the purposes of the PBA, such that she is entitled to the Pension Funds?
23Each of the parties relies on the factors set out in Molodowich in support of their claims regarding Ms. David’s status as a surviving common law spouse. I will consider these factors in turn.
Shelter
24It is undisputed that Mr. Aouad and Ms. David lived together in the two-bedroom Apartment for more than 20 years. For approximately ten of those years, Ms. Awad’s daughter, Susan, lived with them. Susan deposed that she occupied the second bedroom while her mother, Ms. David, and Mr. Aouad occupied the master bedroom. Ms. David does not deny that she moved into the second bedroom with her daughter when Mr. Aouad’s sister, Souad, came to visit, so that Mr. Aouad and Souad could share the master bedroom.
25I accept Susan’s evidence that while she was living with Mr. Aouad and Ms. David, Ms. David slept in the same bedroom as Mr. Aouad. Susan’s evidence is unchallenged by the Applicants. Susan’s evidence is corroborated by Elena’s evidence, which was also not challenged by the Applicants.
26Ms. David’s evidence is that during her cohabitation with Mr. Aouad, his siblings visited approximately five times. I agree that so few visits would not have given them much opportunity to appreciate the regular sleeping arrangements of Mr. Aouad and Ms. David.
Sexual and Personal Behaviour
27There is little in the evidentiary record regarding sexual behaviour. Ms. David’s evidence is that she and Mr. Aouad shared the same bedroom unless Mr. Aouad’s family was visiting. In that case, she would move into the second bedroom, which was available for visitors, including Susan and Elena, and Ms. David’s niece and her family when they came to visit from the Philippines.
28Ms. David’s evidence, and the evidence of several others, including Susan and Elena, and Mr. Aouad’s close friends, is that Mr. Aouad and Ms. David held themselves out to be in a spousal relationship, which would generally include sexual relations.
29Ms. David’s evidence is that she met Mr. Aouad through Lorna, who met Mr. Aouad at a bookkeeping course. Lorna corroborated this evidence and deposed that Ms. David and she, together with another friend, Raquel, were sharing an apartment until Ms. David moved out to go and live with Mr. Aouad. Ms. David deposed that their relationship evolved from a courtship that led to a common law marriage and endured for nearly 30 years.
30Lorna deposed that when Mr. Aouad and Ms. David first met, Mr. Aouad would pick Ms. David up at work. Lorna also deposed that, later, after Ms. David moved in with Mr. Aouad, when she and Ms. David would go shopping together, Ms. David would often buy clothing for Mr. Aouad.
31There is no compelling evidence to suggest that either of Mr. Aouad or Ms. David had any other common law spouse or partner, or that either was associating with any other person or persons of the opposite sex. Under examination, Youmna testified that Mr. Aouad was a handsome, cultured, and educated man, and that he had a lot of girlfriends and had many affairs with women. However, when asked to name any of these women, Youmna declined to do so.
32In support of her allegation that Mr. Aouad and Ms. David were not intimately involved, May deposed that Mr. Aouad would regularly visit her at her home in Michigan, but he was never accompanied by a partner, and he never mentioned having a partner.
33The evidentiary record supports the conclusion that Mr. Aouad and Ms. David were in a loving relationship in which they shared time, celebrations, and challenges, including Mr. Aouad’s cancer diagnosis and treatments. Ms. David also deposed that, after Mr. Aouad’s cancer diagnosis, she “refused to leave his side”, and that even before he got ill, they did not like to be apart for long periods of time. After they met, she only travelled to the Philippines to visit her family four times. She preferred to spend her time with Mr. Aouad.
34Mr. Aouad’s nephew, Oscar Lahoud (“Mr. Lahoud”), wrote a note, which May attached to her affidavit. In that note, Mr Lahoud stated that Mr. Aouad had told him that Mr. Aouad and Ms. David were not common law spouses. However, after Mr. Lahoud was shown the photographs in evidence of the couple, he admitted that he could not say for certain that Mr. Aouad had not been in a relationship with Ms. David.
35I cannot make specific findings on the sexual behaviour between Mr. Aouad and Ms. David. However, in the case of Boudreau v. Jakobsen, 2020 ONSC 5264, at para. 28, aff’d 2021 ONCA 511, the court found that despite the lack of an active sexual relationship, the parties were common law spouses based on shared shelter, financial arrangements, social perception, and personal behaviour.
36I find that there is significant reliable, independent evidence to show that Mr. Aouad and Ms. David conducted themselves as partners in a caring, attentive, and loving relationship. Ms. David provided significant support to Mr. Aouad during his illness.
Services
37It is undisputed that Ms. David took on domestic services at the Apartment. Souad deposed that when she visited Mr. Aouad, Ms. David made lunch for Mr. Aouad and her. Ms. David’s own evidence is that she would regularly buy groceries and cook meals. In a handwritten note from the next-door neighbour, the neighbour commented on Ms. David’s superior cooking skills. Ms. David deposed that following Mr. Aouad’s cancer diagnosis, she would cook healthy foods to sustain him during his cancer treatments.
38Ms. David deposed that she did the usual work of a housewife, including housework, laundry, meal preparation, and shopping for groceries and household products. Meanwhile, Mr. Aouad paid for rent and utilities and otherwise looked after the Apartment.
39It is also undisputed that Ms. David cared for Mr. Aouad when his health was in decline. While Ms. David admits that she did not attend every medical appointment with Mr. Aouad, she attended many. Mr. Sarra deposed that he would see Mr. Aouad and Ms. David accessing customized TTC transportation to take them to medical appointments.
40The Applicants do not question that Ms. David took on these tasks. However, they say she did so because it was part of the bargain she made with Mr. Aouad. She would look after him and the Apartment in exchange for room and board.
41I find that there is no evidence that Mr. Aouad paid her for these services in cash or in kind. In my view, Ms. David provided these services to Mr. Aouad as a caring and loving partner and consistent with their agreement on how they would divide domestic chores.
Societal and Social
42Lorna deposed that Ms. David and Mr. Aouad always joined weekend gatherings, such as picnics, with Lorna and Raquel, and others. In turn, Mr. Aouad and Ms. David would host parties for them at the Apartment. There is a photograph of Ms. David and Mr. Aouad at what looks like a picnic. They are seated as a couple, next to one another, on the ground. Lorna also deposed that Ms. David and Mr. Aouad were “fixtures” at Lorna’s home for occasions like birthdays, baptisms, holidays, and random gatherings, especially in the summer. Lorna deposed that Mr. Aouad participated in preparing a surprise birthday party for Susan to celebrate her first birthday in Canada.
43While not abundant, there are photographs of Mr. Aouad and Ms. David spending family time and leisure time together.
44It appears that Mr. Aouad and Ms. David took at least one trip together, with friends, to Niagara Falls. In a group photo taken there, Mr. Aouad is standing next to Ms. David. In two other photographs, which appear to have been taken the same day at Niagara Falls, Mr. Aouad has his arm around Ms. David, and she appears to have her arm around him. In another photograph of the two of them sitting close together on a couch, she has one of her hands on his thigh, and her other hand is clasping his hand, which is draped over her shoulder. In another photograph, they are standing close together and Ms. David has her hand on Mr. Aouad’s arm.
45The Applicants did not challenge the authenticity of the photographs.
46Hikmat Dandan (“Mr. Dandan”) swore an affidavit in which he stated that he had known Mr. Aouad since 1998. Like Mr. Aouad, he was of Lebanese descent, and he described his relationship with Mr. Aouad as a relationship between brothers, who shared similar political and religious values. Mr. Dandan deposed that Ms. David was always a part of Mr. Aouad’s life from the time he met him, and that he was often invited to their home for meals. Mr. Dandan deposed that he had no doubt that Ms. David “was a wife more than a partner” to Mr. Aouad. He also deposed that Ms. David was very involved in Ms. Aouad’s care following his cancer diagnosis, including making immunity-boosting drinks and accompanying him to his chemotherapy treatments.
47Under cross-examination, Mr. Dandan maintained that Ms. David was Mr. Aouad’s soulmate and that she was “all the time in the picture.” As evidence of their intimate relationship, Mr. Dandan recalled a discussion between him and Mr. Aouad about Mr. Aouad’s weight gain. During the discussion, Ms. David was sitting next to Mr. Aouad and she put her hand on his belly and said, “Yes, Hamid, you should get rid of this belly.” Mr. Dandan testified that, to him, this was a “romantic sort of reaction.” He also testified that he could conclude, from the way Mr. Aouad talked about Ms. David, that she was “an intimate person in his life.”
48Elie Tannous (“Mr. Tannous”), another friend of Mr. Aouad, also of Lebanese descent, and a teacher, described his relationship with Mr. Aouad as that of brothers. They had known each other since 1970. He also deposed that Ms. David was a part of Mr. Aouad’s life for more than 27 years, and that Mr. Tannous and his family invited Ms. David and Mr. Aouad to their home for parties or meals and vice versa. Mr. Tannous deposed that Mr. Aouad treated Ms. David with respect and that he would lovingly tease her and make jokes around her.
49Another teacher, Samir Harfouche (“Mr. Harfouche”), deposed that he knew Mr. Aouad since 1993, when Mr. Aouad was a substitute teacher at the high school in Toronto where Mr. Harfouche was teaching. He deposed that he, too, spent time at the Apartment with Mr. Aouad and Ms. David, where he observed that they were loving and respectful of one another, and that they jointly participated in meal preparation and cleaning up after a meal. Mr. Harfouche also deposed that Mr. Aouad would celebrate holidays, like Christmas Eve, with Ms. David and her community. Mr. Harfouche further deposed that Mr. Aouad had no girlfriend other than Ms. David. When asked under cross-examination whether Mr. Harfouche saw any romantic gestures between Mr. Aouad and Ms. David, such as hugging or kissing, Mr. Harfouche said that he had not, and that “this is not from our Arabic customs and the traditions.” He also added that he could assess the intimacy between them by “the way they look at each other ... [Mr. Aouad] used to respect her.”
50Mr. Sarra deposed that he observed their routines for the past ten years—both while they were working and when they retired. He observed that Ms. David regularly did the laundry and the grocery shopping, and Mr. Aouad would make repair and maintenance requests regarding the Apartment. In doing so, Mr. Aouad would make requests on behalf of both of them by stating what “they”, as opposed to “he”, needed. Mr. Sarra also deposed that he would regularly see Mr. Aouad and Ms. David board the TTC Wheel Transit Service to attend medical appointments.
51Martha Chavez, a next-door neighbour, deposed that she and her daughter were always invited to celebrate special holidays and occasions with Mr. Aouad and Ms. David.
52Ms. David produced a number of greeting cards from friends in which they wished both Ms. David and Mr. Aouad, referred to as “Angie and Hamid”, a “Merry Christmas” or sent other greetings. In another card addressed to “Angie and Hamid”, the writer thanked them for attending a birthday party and for the gifts. The writer also thanked them for “always being there for the important things”. Another card expressed thanks to Angie and Hamid, “for always giv[ing] the nicest things”. While only some of these cards bear a date, being 1995, the Applicants did not challenge the authenticity of these cards.
53The evidence of Susan and Susan’s wife, Elena, is that Mr. Aouad and Ms. David were a couple. Elena posted photographs on Facebook of Christmas holidays with Mr. Aouad and Ms. David, to which she added a caption — “Christmas with the in-laws”. The Applicants did not challenge the authenticity of any of the photographs. Nor, as noted, did the Applicants cross-examine Susan or Elena on their evidence.
54Mr. Aouad and Ms. David each declared themselves as “single” when filing their tax returns. Ms. David’s evidence is that she did so on the advice of Mr. Aouad, who told her that there would be a greater refund available to her as a low-income earner if she filed as a single person. In the case of Paul v. Barrett, 2016 ONSC 7933, the parties shared living expenses but maintained separate finances and did not declare themselves as common law spouses for tax purposes. Nevertheless, the court found that the applicant was a spouse based on shared living arrangements, social activity, and the respondent’s acknowledgement of spending time together. In the case of Sousa v. Canada (Minister of Public Safety and Emergency Preparedness), [2018] I.A.D.D. No. 1656, the Immigration and Refugee Board of Canada, Immigration Appeal Division, considered the couple’s common-law relationship despite the fact that they declared themselves as single on their tax returns.
55Ms. David disputes that she was taken in by Mr. Aouad as his housekeeper. She submits that the only evidence in support of this statement is the evidence of the Applicants and some of their siblings, and that it is hearsay. These witnesses say that Mr. Aouad told them this. They cannot corroborate this evidence with any document, and the only corroboration for it comes from Mr. Aouad’s siblings, all of whom stand to benefit if Ms. David is found to not be Mr. Aouad’s spouse.
56Ms. David deposed that Mr. Aouad was very kind to her family and he welcomed them into their home. Ms. David also deposed that Mr. Aouad encouraged her to speak to his family members by phone and that she did so. In particular, she often spoke over the telephone to Mr. Aouad’s brother, Camille, and his wife, who were living in California.
57Ms. David deposed that she had a good relationship with Mr. Aouad’s siblings until he was diagnosed with cancer. After that, and particularly around the time of Mr. Aouad’s funeral, she felt a lot of animosity from them.
58On the point of societal and social conduct, I find that there is plenty of evidence to show that Mr. Aouad and Ms. David participated together in neighbourhood and community activities. Mr. Aouad appears to have had an excellent, father-like relationship with Susan, and he welcomed Elena into their home also. Based on the evidentiary record, Mr. Aouad spent holidays with Ms. David’s community. I accept Ms. David’s evidence that Mr. Aouad encouraged her to reach out to his siblings and that she did, to a degree. However, none of Mr. Aouad’s siblings lived in Canada, so it would have been difficult for Ms. David to spend a lot of time with them in person. I further find that Mr. Aouad and Ms. David were accepted by Ms. David’s family, and many of Ms. David’s friends, as well as some of Mr. Aouad’s friends as a loving couple, respectful of each other.
59I accept that Ms. David followed Mr. Aouad’s advice and filed her tax returns as a single person, believing that this would be to her advantage. This fact alone does not diminish the compelling evidence of their shared living arrangements, social activity, spending time together, and their holding themselves out to their neighbours, friends, and community as a couple.
Support (Economic)
60The record shows that when Mr. Aouad met Ms. David, she was working full time and supporting herself. She was renting an apartment with Lorna and another friend, Raquel. Ms. David adduced documents to show that she was purchasing Canada Savings Bonds in 2000 and 2001 through a payroll savings plan. Ms. David also provided evidence of Canada Pension Plan payments made by her between 1990 and 2000. She also produced a Record of Employment that showed employment with Thistle Printing Limited from April 9, 2005 to February 13, 2016. Other documentation shows that she retired in 2016, after Mr. Aouad’s cancer diagnosis.
61Ms. David provided documentary evidence to show that she had designated Mr. Aouad as the beneficiary of her Registered Retirement Savings Plan (“RRSP”).
62According to documentary evidence, Mr. Aouad paid for an airline ticket for Ms. David so that she could travel to the Philippines to visit her family. On another visit to the Philippines, he wired money to her while she was there. There is no evidence that she was ever asked to pay those funds back to Mr. Aouad. When Mr. Aouad distributed his liquid assets immediately before his death, he included Ms. David, as well as his siblings, in the distribution.
63Ms. David deposed that Mr. Aouad gave her the $25,000 when he was distributing funds to his siblings immediately prior to his death because she was dependent on him for funds to pay household expenses while he was in the hospital. Ms. David denies that the payment was any form of severance and asserts that there is no evidence of a contract, salary, or pay stub. She never claimed any employment income from him on her tax return, and there is no evidence of any payroll deductions.
64Under cross-examination, May testified that she made an assumption that the $25,000 payment was a severance payment, but in her mind, it was a logical and truthful assumption.
65Neither Mr. Aouad nor Ms. David owned any real property. There is no evidence that they owned any joint bank accounts. Each of them appears to have made their own investments with their employment income. However, Ms. David appears to have designated Mr. Aouad as the beneficiary of her RRSP, and she would buy clothing for him. According to Ms. David’s evidence, Mr. Aouad would give Ms. David money to buy groceries for their household. I find that Mr. Aouad and Ms. David had an economic plan for management of their household to which they each contributed.
Children
66Mr. Aouad and Ms. David did not have any children together. Mr. Aouad spent considerable time with Ms. David’s daughter, Susan. Ms. David’s evidence is that in or around 1998, Mr. Aouad assisted Ms. David to sponsor Susan’s immigration to Canada so that Ms. David and her daughter could be reunited. Susan immigrated to Canada in 2000. Susan’s evidence is that she lived at the Apartment with Ms. David and Mr. Aouad, whom she referred to as her “stepfather” or as “Uncle Hamid” and who, she deposed, “treated [her] as his own”. Mr. Aouad encouraged her to learn French and gave her books to study the language, he bought her clothing, taught her about money management, and helped her write a résumé for her first job. She lived with Mr. Aouad and Ms. David for approximately ten years, and, according to the evidence of Ms. David, Susan, and Elena, the whole family (Mr. Aouad, Ms. David, Susan, and Elena) routinely had weekend lunches together at home or in a restaurant, and they always spent Christmas together, as a family.
67Elena deposed that she treated Ms. Aouad as her father-in-law, and that he treated her as a daughter-in-law. Elena’s evidence is that she and Susan visited Ms. David and Mr. Aouad at least twice a month at weekends to assist them with tasks like getting groceries, and sometimes, they went out to dine at a restaurant. Elena also deposed that they would watch television as a family, and they would always spend Christmas Eve together. Elena also deposed that on occasion, when Mr. Aouad was rushed to hospital, she would leave work to be with him because they were a very close family. Elena adduced copies of social media posts showing photographs of Mr. Aouad, Ms. David, Susan, and her celebrating Christmas. As stated above, one such post had a caption “Christmas with the in-laws”. The Applicants did not challenge Elena’s evidence.
68Susan and Elena assisted Mr. Aouad and Ms. David by driving Mr. Aouad to medical appointments and picking up groceries for them. When the Apartment was being painted, Mr. Aouad and Ms. David moved into Susan and Elena’s apartment until the painting was done. Susan and Elena offered Mr. Aouad and Ms. David the master bedroom, and Susan and Elena moved into the second bedroom.
69I find that Mr. Aouad treated Susan like his own child and that he welcomed Susan’s wife into their lives.
Conclusions
70Based on the evidence adduced by Ms. David, much of which was unchallenged by the Applicants, I am satisfied that she, on a balance of probabilities, has met her burden to show that she was a common law spouse of Mr. Aouad, as that term is defined in the PBA.
71I do not accept the Applicants’ assertion that Ms. David was a housekeeper, and not a spouse. This assertion is based largely on hearsay evidence—what they allege Mr. Aouad told them about his relationship with Ms. David. There is no documentary evidence of an employer-employee relationship between Mr. Aouad and Ms. David, or any evidence of a barter arrangement whereby room and board were exchanged for housekeeping services. Based on the evidentiary record, for much of their relationship Ms. David was gainfully employed at Griffin House, and its successor. There is no evidence to suggest that she needed charity from Mr. Aouad when they met. Further, the conduct between Ms. David and Mr. Aouad was not that of a housekeeper and her employer. It was spousal in nature.
72Mr. Aouad’s siblings rarely visited him and were not well-positioned to assess the nature of his relationship with Ms. David. Under cross-examination, the Applicant, May, admitted that she last visited Mr. Aouad in or around 2015, and the Applicant, Elias, admitted that he last visited Mr. Aouad in 2011, before Mr. Aouad’s cancer diagnosis.
73I also reject the Applicants’ argument that if Ms. David were a spouse, Mr. Aouad would not have given her only $25,000 of the $470,000 he distributed to family members immediately prior to his death. There is no reliable evidence regarding the distribution of those funds, including what Mr. Aouad intended in making those distributions. It is conceivable that Mr. Aouad limited the amount paid to Ms. David to $25,000 because he knew that, as his common law spouse, she would receive his pension benefits.
Issue 2: Was it necessary for Mr. Aouad to designate Ms. David as his common law spouse on the date on which he became entitled to pension benefits pursuant to the PBA in order for her to receive the Pension Funds as his surviving spouse on his death?
74The Applicants assert that s. 48 of the PBA requires that the pension member formally designate his common law spouse as the beneficiary of his pension benefits upon the death of the pension member. While I was not provided with any authority that specifically states that there is no formal requirement to designate a common law partner as the beneficiary of pension benefits upon death of the pension member, the lack of formality seems to be implied by the approach taken to this requirement in the jurisprudence relating to s. 48. For the reasons that follow, I find that the only reasonable interpretation of the PBA is that a formal designation of a common law spouse is not required. I also note that in Ms. David’s dealings with the OTPP administrators, they did not raise the lack of a formal designation as a matter affecting Ms. David’s entitlement.
75Importantly, the definition of “spouse” in s. 1(1) of the PBA includes either of two persons “who are not married to each other and are living together in a conjugal relationship, continuously for a period of not less than three years” [emphasis added].
76This is relevant because s. 48(1) provides an entitlement to pension benefits for spouses unless, pursuant to s. 48(3), that spouse lives separate and apart.
77Most of the cases engaging s. 48 of the PBA deal with situations in which the entitlement of former spouses/common law partners is challenged. I was also not provided with any authority referring to a formal requirement to designate the spouse as the beneficiary.
78The decision of the Court of Appeal in Carrigan v. Carrigan Estate, 2012 ONCA 736, 112 O.R. (3d) 161, leave to appeal refused, [2012] S.C.C.A. No. 532, is instructive. In this case, the Court of Appeal addresses a situation where the deceased had a married spouse from whom he lived separate and apart while living with a common law partner at the time of his death. The deceased had designated his wife and their children as the beneficiaries of his pension benefits. The issue was whether the common law partner or the person designated under s. 48(6) of the PBA (i.e., the wife to whom he had still been legally married) was entitled. Section 48(6) precludes a designation where the deceased lived with a “spouse”:
(6) A member, former member or retired member described in subsection (1) may designate a beneficiary and the beneficiary is entitled to be paid an amount equal to the commuted value of the deferred pension or pension benefits mentioned in subsection (1) or (2) unless on the date of death the member, former member or retired member has a spouse who has an entitlement under subsection (1) or (2). [Emphasis Added.]
79The Court of Appeal for Ontario resolved this issue by finding that the common law partner was not a “spouse” for the purpose of s. 48 so that the designation was valid: at paras. 17, 30.
80However, it is critical to note that the legislation was subsequently amended to give common law partners living with a deceased priority over spouses that live separate and apart (see s. 48(3.1)).
81In my view, the Carrigan case is helpful for two reasons.
82First, if there were a formal requirement to designate pension benefits to a common law partner, the court could have easily resolved the issue. The deceased in that case had decided not to designate his common law partner as the beneficiary of his pension benefits. Instead, he designated his legally married spouse. But the court did not address the issue of formalities relating to a beneficiary designation. Instead, the court treated the issue as one that turned on the question of whether the common law partner was a “spouse” for the purpose of the relevant section. Based on this reasoning of the Court of Appeal, a lack of formality by the deceased in designating a common law spouse as the beneficiary of the pension benefits is not a complete answer to the question of entitlement.
83Second, the structure of s. 48(6) does not support the notion that a common law partner needs to be formally designated to give rise to a claim to the pension benefits. The factual difficulty in the Carrigan case was that the deceased’s wife’s claim was based on a designation under s. 48(6)—not on her status as a “spouse” (by virtue of s. 48(3), i.e., her living separate and apart extinguished any claims to the pension benefits she might have had under s. 48(1)). But pension benefits cannot be assigned if a “spouse” is living with the deceased under s. 48(6).
84Logically, and based on the rules of statutory interpretation, it would not make sense that a pension member be required to formally designate a common law spouse as a beneficiary living with him or her while s. 48(6) bars any designations if the deceased lives with a common law spouse. The only reasonable interpretation of s. 48(6) is that the automatic entitlement of spouses (married or common law) overrides any attempts to assign pension benefits. Designating common law partners, thus, seems impossible and unnecessary.
85Since the amendment of the PBA following Carrigan, common law partners have been treated as spouses under s. 48. There does not appear to be any need for a formal beneficiary designation.
86The Financial Services Tribunal in Roubinchtein v. Ontario (CEO of FSRA), 2021 ONFST 10, 64 C.C.P.B. (2nd) 89, at para. 25, summarized this development and stated the current law pertaining to a spouse’s entitlement:
Therefore, under the Act and the Plan text, there are three possible “surviving spousal” categories:
Legally married spouses - two individuals who are married to each other at the date of the member’s death;
Common law spouses - two individuals who are living in a conjugal relationship continuously for a period of at least three years immediately prior to the member’s date of death; and
Common law spouses who are the parents of a child - two individuals who are living together in a conjugal relationship of some permanence at the date of the member’s death and are the parents of a child.
A person who fits within any one of these three categories relative to a Plan member at the date of the member’s pre-retirement death is a “spouse” under the Act and the Plan for purposes of eligibility for the Plan’s surviving spouse pre-retirement death benefit. [Emphasis added.]
87The tribunal framed the spouse’s entitlement as automatic, without any consideration of formalities and designations.
88Accordingly, I find that the lack of a formal designation of Ms. David as the beneficiary of the Pension Funds is not a bar to her entitlement to them.
Disposition
89For the foregoing reasons, Ms. David has met her burden to show that she is a common law spouse of Mr. Aouad for the purposes of the PBA.
90The evidence of Mr. Aouad and Ms. David’s intention to live as spouses, and the indications that they did so, outweigh the evidence that would support a contrary conclusion.
91I am also satisfied that it was not necessary for Mr. Aouad to formally designate Ms. David as the beneficiary of the Pension Funds.
92Accordingly, the following orders shall issue:
a. An order declaring Ms. David as the common law spouse of Mr. Aouad for the purposes of the PBA; and
b. An order declaring Ms. David as the beneficiary of the Pension Funds.
Costs
93Ms. David has successfully defended against the Applicants’ claims. Presumptively, she is entitled to her costs. The parties are strongly encouraged to agree on the matter of costs. If they cannot, Ms. David may deliver written costs submissions, not exceeding three pages double spaced (excluding a bill of costs and offers to settle, if any) within 10 days of these reasons. The Applicants may deliver similar written costs submissions 10 days thereafter. Reply submissions may only be made with leave. If costs submissions are not so filed, the matter of costs will be deemed to have been resolved.
B. Dietrich J.
Date: June 11, 2026