Legal fictions are assumptions created by courts or legislation that are treated as legally true, even where they do not reflect factual reality. They exist to make the legal system workable, preserve fairness, and allow legal rules to operate where strict factual accuracy would create uncertainty or injustice.
A common example is corporate personhood, where a company is treated as a separate legal “person” capable of owning property, entering contracts, and being sued independently of its shareholders.
Adoption is another example, where adoptive parents are legally recognised as if they were the child’s biological parents, often supported by the issue of a new birth certificate.
Similarly, the law presumes innocence in criminal proceedings, treating an accused person as innocent until guilt is proven.
Other legal fictions appear in everyday legal practice. The rule that ignorance of the law is no excuse assumes everyone knows the law, even though that is obviously unrealistic.
Constructive possession allows a person to be treated as possessing something, such as contraband, in their home, even without physical control.
The presumption of parenthood treats a child born during marriage as the husband’s child, unless rebutted.
Historically, courts also used fictional parties such as “John Doe” – a legal fiction originating in 14th-century English law to act as a placeholder name for an unknown or anonymous party in lawsuits, notably in ejectment actions to settle land disputes. It allowed legal proceedings to bypass strict technical rules and proceed against fictitious, anonymous individuals.
“Richard Roe” – the fictional memoir of a legal person used in English law when the real name of someone is withheld, or when a corpse can’t be identified – in property disputes to resolve title issues.
In contrast, legislative practices such as “turning back the clock” were used to preserve the validity of laws passed after formal deadlines. Ultimately, legal fictions are not mistakes in the law—they are deliberate tools. They allow the legal system to balance certainty, practicality, and justice by creating workable legal outcomes where literal truth alone would be insufficient.
Background
In Riddle v Ivari 2026 SCC 9, the Supreme Court of Canada revisited the doctrine of death declarations. It clarified the evidentiary threshold for overturning such declarations under the Civil Code of Québec. Building on its earlier reasoning in Threlfall v. Carleton University, 2019 SCC 50, a Supreme Court of Canada decision ruling that pension payments made to a missing person (“an absentee”) presumed alive under the Civil Code of Québec (C.C.Q.) can be recovered by the payer once actual death is proven. The later discovery of a body rebuts the presumption of life retroactively, establishing that pension payments were made in error and must be reimbursed.
The Supreme Court of Canada reaffirmed that a declaration of death is not direct evidence of death. Still, a rebuttable legal fiction designed to provide certainty when a person’s whereabouts remain unknown. A significant decision confirming that declarations of death exist to balance competing interests: preserving the absentee’s rights during uncertainty while also allowing succession, pension entitlements, insurance claims, and estate administration to proceed without indefinite delay. Critically, the Court held that when credible evidence later shows the absentee is alive, the legal fiction must yield to reality.
Facts
Mr Imanpoor disappeared from Québec in 2008 after leaving home to go on a business trip to Toronto, but never returning. He left behind substantial debts and unresolved financial affairs. His spouse, Ms Riddle, applied for and obtained a declaratory judgment of death in 2017 under Article 92 of the Civil Code of Québec. The life insurer, Ivari, contested the declaration. Ivari submitted that the circumstances suggested voluntary disappearance rather than death. Despite these suspicions, there was no conclusive evidence of life, and as the statutory requirements for absence were satisfied the Court granted the declaration.
Later, Ivari obtained compelling evidence that Mr Imanpoor had moved to Iran and remained alive. This included passport applications with photographs, official identity papers, civil registry records, social benefit applications, and travel logs documenting his return to Iran after disappearing. Ivari sought to annul the death declaration. Notably, Ivari did not serve the application on Mr Imanpoor.
Service of the application on the absentee is generally required to preserve procedural fairness, as it ensures that the person whose status is being challenged has the opportunity to respond and protect their interests. However, exceptions may apply where service is impossible or where the absentee’s whereabouts are unknown or uncertain. In such cases, practitioners should seek directions from the Court, which may include requesting substituted service (for example, serving notice on a last-known address, publishing a public notice in a newspaper, or, if possible, by email) or an order dispensing with service altogether.
Courts will assess whether these steps are reasonable in the circumstances. If the Court is satisfied that all reasonable methods have been attempted and that proceeding without direct service would not cause real prejudice to the absentee, the proceedings may be allowed to continue if the interests of justice are maintained.
Issues
The Supreme Court considered two principal issues:
Whether the insurer’s failure to serve the declared decedent invalidated the annulment proceedings.
What standard of proof applies when seeking to annul a declaratory judgment of death?
Decision
The Supreme Court upheld the annulment of the declaration of death.
Chief Justice Wagner held that although service on the declared decedent should generally occur, the failure was not fatal as procedural fairness was not compromised. No prejudice occurred to invalidate the proceedings. Importantly, the Court dismissed the argument that annulment required ‘unquestionable’ proof of life. Applying FH v McDougall, the Supreme Court confirmed that the ordinary civil standard applies: applicants need only establish, on the balance of probabilities, that it is more likely than not the missing person is alive. The Court stressed that a declaratory judgment of death
‘presumes the absentee’s death; it does not determine it.’
When clear and convincing evidence shows the absentee is alive, the presumption must give way. This clarification has significant practical implications: by setting the standard at the balance of probabilities, the Court lowers the barrier for reversing a declaration of death in light of new evidence. As a result, insurers or next of kin who uncover credible indications that a missing person is alive may more readily petition for annulment, making it easier to address mistakes in death declarations and potentially reducing costly litigation over disputed status in succession or insurance claims.
Relationship with Threlfall v Carleton University
The reasoning in Riddle builds seamlessly on the Court’s earlier analysis in Threlfall v. Carleton University, 2019 SCC 50. In Threlfall, Mr Roseme disappeared while suffering from early-stage Alzheimer’s disease. During his absence Québecec law treated him as an absent person and presumed him alive, so pension payments continued. When his body was discovered six years later, his death was fixed as having occurred shortly after his disappearance. The issue then arose whether pension payments made during that period had to be repaid. The majority held that they did.
The Court explained that absentee law creates a provisional legal fiction: the absentee is treated as alive until certainty arises. However, once definitive proof of death is found within the statutory seven-year period, reality supersedes the fiction retroactively. Pension entitlements ceased on the actual date of death, not the later date of its discovery. The Court articulated the rationale memorably:
“Life, at some point, must move on…Pension benefits and life insurance premiums cannot roll on into eternity. Heirs cannot be permanently locked out of the succession.”
Illustrating the policy basis for declarations of death: certainty must eventually override indefinite uncertainty.
Legal Principle
Both Threlfall and Riddle make clear that declarations of death are legal presumptions rather than permanent legal truths. The law protects absentees by presuming life in the absence of certainty, thereby preserving property rights, contractual entitlements, and succession interests. However, that protection is only provisional. If proof of death emerges, as in Threlfall, it may retrospectively defeat rights dependent on life. If proof of life emerges after a declaration of death, as in Riddle, the Court may annul the declaration. In either situation, legal fiction yields to factual reality.
Significance
The decision’s broader relevance extends beyond Québec , particularly to provinces such as Ontario, which operate under legislation such as the Declarations of Death Act, 2002. In these jurisdictions, similar principles apply where courts may revoke declarations of death upon fresh evidence or changed circumstances. Notably, while most provinces provide mechanisms for revoking a declaration if convincing new information comes to light, there are differences in procedure and terminology. For example, British Columbia’s Estate Administration Act requires that an application to revoke a declaration of death include notice to interested parties and may impose stricter evidentiary requirements, such as sworn statements or additional documentary proof.
In contrast, Alberta’s Missing Persons Act 2011 permits a court to issue a declaration of presumed death after a shorter minimum period of absence. It outlines detailed procedures for service when the person’s whereabouts are unknown, which can affect the easy pursuit of an annulment. These differences, such as the time required before making an annulment application, mandatory notice requirements, or the types of evidence courts accept, highlight the importance of proper jurisdictional analysis when revoking or annulling a declaration.
In general, all provinces share the underlying rationale of balancing certainty for estates and dependents with fairness to the absentee. Still, statutory details may affect the practical steps required to reverse a declaration. These similarities and differences highlight the importance of understanding local legislation when dealing with absent persons and death declarations across jurisdictions.
The Court identified several practical principles.
- First, current evidence of life after the declaration is critical.
- Corroborated evidence is stronger than isolated proof.
- Pre-declaration evidence may support, but usually cannot independently justify revocation.
- Voluntary disappearance may strengthen inferences of continued life.
Procedural defects will not necessarily invalidate proceedings where fairness is preserved.
As a result, these principles are equally relevant to succession disputes, insurance claims, pension recovery, and estate administration. For example, consider a scenario where a missing person was declared dead and their estate distributed among heirs. If credible new evidence emerges years later showing the person is alive, the heirs may be required to unwind the distribution or return assets, and insurance companies might need to reverse claim payments. Similarly, in an insurance context, if an individual’s death is declared and a payout is granted, the discovery that the person is alive would obligate the insurer to seek repayment and adjust policy records.
Remedies in these situations can include restitution, tracing, and recovery actions against recipients of estate assets or insurance proceeds. Courts may order heirs to return property or funds, and insurers to reclaim payouts, sometimes with interest. However, practical challenges often arise. Locating all asset recipients can be difficult, particularly if assets have been transferred to third parties or spent. Some recipients may rely on defences such as a change of position, asserting they cannot restore what was received in good faith. International elements, such as heirs or insurance payments abroad, can add to the complexity, especially where foreign legal systems are involved.
Timing is also crucial: statutory limitation periods or laches may bar recovery, and the longer the passage of time, the harder it may be to unwind distributions. These practicalities highlight that, while legal remedies exist to correct mistaken death declarations, achieving full restitution can be a complicated and imperfect process that requires careful handling by practitioners.
Conclusion
Riddle v Ivari confirms that declarations of death are tools of legal convenience, not unchangeable statements of fact. The law uses them to manage uncertainty, not to perpetuate falsehoods. However, reliance on legal fictions is not without criticism. Some commentators argue that such fictions carry the risk of injustice in individual cases, for example, if a declaration is made or revoked prematurely, with disruptive consequences for families, estates, or insurers. Others point to the administrative burdens and procedural complexities that may arise when attempting to unwind or challenge a legal status based on a fiction. While these concerns do not outweigh the utility of legal fictions, recognising them highlights the need for careful procedural safeguards and ongoing judicial oversight.
Consistent with Threlfall, the Supreme Court held that where convincing evidence reveals the truth—whether death or continued life—the legal fiction must give way. In practice, in succession law, pension disputes, and life insurance litigation, the doctrine reflects judicial recognition that, while legal certainty is necessary, it cannot permanently prevail over reality.