In a recent Ontario case, the testator’s brother and ex-wife disagreed on whether her application should be heard in Saskatchewan or Ontario.

Brother and Ex-Wife Go to Court Over Testator’s Retirement Account

The testator, who had lived in Saskatchewan for most of his life, died at the age of 53 on September 3, 2019. He had made a will leaving his estate to his parents, who both survived him. The testator’s assets and beneficiaries were all located in Saskatchewan.

The testator had married his wife in 1993 and they divorced in 2001. The testator did not remarry and had no children. The ex-wife had no contact with the testator following the divorce, until shortly before his death when he attempted to contact her several times.

The testator’s brother, who lives in Ottawa, was named the executor of the estate.

Following the testator’s death, his Locked in Retirement Account (“LIRA”) was discovered. Its value in 2018 was $137,019. The bank holding the LIRA confirmed that the testator’s ex-wife was the designated beneficiary of the LIRA, although the signed beneficiary form could not be located.

When the LIRA was discovered, the brother requested that the ex-wife sign a release of her interest in it. The brother took the position that the LIRA formed part of the estate. Additionally, the ex-wife had signed a separation agreement with the testator in which she had released her interest in his estate.

The ex-wife brought an application in November 2019 seeking a declaration that the proceeds of the LIRA be paid to her as the designated beneficiary.

In response, the brother brought a motion to stay or dismiss the ex-wife’s application on the grounds that Ontario did not have jurisdiction to hear the matter or that it was not the appropriate forum. The brother sought to have all matters heard in Saskatchewan where he intended to apply for probate.

The Supreme Court of Canada’s Van Breda Test

The court began by explaining that the applicable two-part test is set out in the Supreme Court of Canada decision Van Breda v. Village Resorts Ltd. Under the test, a court must first determine if it has jurisdiction (jurisdiction simpliciter). In the event that the threshold is not met, the court may go on to exercise its discretion to determine whether Ontario is the appropriate forum in which to hear the matter.

While Van Breda dealt with a tort claim, courts have applied the test in other types of claims. Under the first stage of the Van Breda test, a court may assume jurisdiction over a matter where:

• The respondent is domiciled in the province;
• The respondent carries on business in the province;
• A tort was committed in the province; or
• A contract connected with the dispute was made in the province.

It is the applicant’s burden to establish jurisdiction simpliciter by identifying a presumptive connecting factor that links the litigation to the forum. However, the court explained that the threshold is not an onerous one and the ex-wife needed only to establish that the case has some connection to Ontario and that she had “some chance of success.”

Court Rules in Favour of Ex-Wife

Despite the brother’s arguments, the court found that the ex-wife had met the threshold of showing that the case had some connection with Ontario and some chance of success. First, it found that the bank holding the testator’s LIRA had its head office in Ontario and ruled that was sufficient to establish that the contract was located in Ontario. Secondly, the court stated:

“This is not an Estate Administration matter, it is only a matter of a cheque being written once it is determined whether the LIRA is payable to the Estate or the [ex-wife]. The fact that the beneficiaries and assets of the Estate are located in Saskatchewan is not relevant to this factor. The LIRA itself has no connection to Saskatchewan.”

Additionally, the court noted that both of the bank’s witnesses on the application as well as the ex-wife were located in Toronto. Finally, the court held:

“The Estate Trustee lives in Ontario. While the case law differs as to the importance of this factor, the fact that [the brother] lives in Ontario cannot be ignored in terms of the factual matrix when determining the jurisdiction simpliciter threshold.

As such, the jurisdiction simpliciter in this matter must be Ontario.”

The court then turned to the brother’s argument that, in the event the court found that Ontario had jurisdiction over these proceedings, it should exercise its discretion under forum non conveniens to decline jurisdiction as a more appropriate forum exists.

Citing previous case law, the court set out a list of non-exhaustive factors to be considered when determining the appropriate jurisdiction:

• The convenience and expense to the parties and their witnesses;
• The desirability of avoiding multiple legal proceedings and conflicting decisions in different courts;
• The enforcement of an eventual judgment; and
• The fair and efficient working of the Canadian judicial system.

The court found that the brother had not met his burden with regard to the second part of the test because the only other proceeding in the matter was the brother’s application for probate in Saskatchewan, which would not give rise to any conflicting decisions. Additionally, the court again noted that the witnesses, contract and evidence were all in Ontario. The court thus concluded:

“I find that the connection to Saskatchewan in relation to this matter is minimal and therefore litigating the LIRA issue in Saskatchewan would result in increased and unnecessary costs.

Finally, the fairness of the legal system favours hearing this matter in Ontario given all of the above.”

As a result, the court dismissed the brother’s motion and the ex-wife’s application would be heard in Ontario.

Get Help

Estate disputes are complicated: they involve high levels of emotion, usually by individuals who are grieving the loss of a family member or who are dealing with a loved one who is very ill. Such disputes can become quite lengthy and can take months or even years to resolve, prompting individuals to take sides, creating acrimonious divisions, and eating into the value of an estate.

At Campbells LLP, our team of compassionate and highly skilled Oakville estate litigation lawyers have been assisting clients with estate disputes and resulting litigation since 1999. We are proud of the strong, long-lasting relationships that we build with our clients and provide a steady sounding board and legal advice to guide them through what can be one of the most emotionally draining times in their lives. With our help, we can ensure that the legacy of our client’s loved ones is carried out exactly as they wished, that their health and well-being is taken care of, and that their estate is protected. 

At Campbells LLP, our exceptional estate lawyers can represent you in all estate litigation matters. We know that many individuals work during the week and cannot meet during the day. One of our lawyers would be pleased to meet with you in the evening or during the weekend, by appointment, if your schedule so requires. Contact us online or at (905) 828-2247. We look forward to speaking with you and going through this process by your side.