We have discussed this concept many times, but because it is such a common factor in people’s lives and estate litigation that it is such a rich source of judicial interpretation. In the 2025 case of Morden v. Niwranski  2025 ONSC 3105 we had a contest between the late husband’s Mr. Lagana’s estate and his surviving common law spouse Ingrid Niwranski. Mr. Lagana left as we have described before, the worst bitter pill and gift one can to a common law spouse, namely preparing no Will. The bank account of the late Mr. Lagana had been placed in a joint account of he and his common law spouse. Mr. Lagana’s daughter of his first marriage had attempted to apply the presumption of resulting trust from Pecore v. Pecore. As Estate Litigation Lawyers well know a successful resulting trust would have taken the assets back from the widow and placed it in Lagana’s estate.  Result, to the daughter. However, interesting in that case the financial planner said that it was his normal practice to discuss and explain the right of survivorship when a joint account was opened. He stated that it was his common practice to always explain what joint with right of survivorship meant. However he could not recall the specific discussion he had with Lagana and his common law spouse. The court felt that this was enough to rebut the presumption of resulting trust. Again, it was not based upon the closeness of the relationship, but rather because there was third party objective evidence which is so critical in dealing with these disputes. Again, one always needs the assistance of an experienced estate litigator and perhaps even more importantly having an experienced Will drafting lawyer to address these issues head on at the time that one’s Will is prepared.

In one of our blog articles on dependency relief, ( just use the search window ) we talked about the case of Cassan v. Giroux.  Dependency relief is the remedy the court offers to dependants, such as a wife, or common law spouse who feels they were not adequately cared for in the deceased’s will.  One of the turning points in the trial were the contents of the obituary. The deceased’s children who wrote the obituary described the applying common law spouse as the deceased long-time partner and described the common law partner’s daughter as his stepdaughter, and grandchildren as his step grandchildren. The children attempted out of the other side of their mouth to argue that the putative common law spouse was only one of the deceased’s friends. Estate Lawyers and Estate Litigation Lawyers have to be alive to the many factors a court will consider to seeing if an applicant was a common law spouse.  Look at our blog Dependency Relief for the leading cases on the point.

In other words, be careful what you write in the obituary as all of your actions both before and after death will be looked at with a magnifying glass. Experienced Will and Estate Lawyers understand that.

What if someone who could have been ordered to pay you support, dies and leaves you nothing in their will, or leaves no will at all.  When you are an Estate Litigation Lawyers, this is a common situation.  A Will and Estates Lawyers must inquire about these factors when drafting a will and power of attorney.

The technical term for a common law spouse is one whom you lived in a conjugal relationship with.

A number of years ago we posted two blog articles on the issue of dependency relief. See DEPENDENT RELIEF CLAIMS, WHAT IF YOUR COMMONLAW SPOUSE LEAVES YOU NOTHING IN HIS/HER WILL and SUPPORT DEAD OR ALIVE.

The law has not changed dramatically, although it continues to be applied and interpreted.

The most common scenario is a common law spouse who has been left nothing in their spouse’s Will or no Will was made. If there is no Will, then the provisions of the Succession Law Reform Act apply and one’s estate is divided amongst one’s blood relatives in a specified fashion.

There are fewer explosive bitter gifts one can leave to their common law spouse than preparing no Will at all.  An Estate Litigation Attorney, as referred to south of the border will know this well.

In that situation one frequently encounters a contest between the deceased’s children and the common law spouse who is not their mother.

To assist in understanding what the court will be looking at in determining whether or not somebody was a common law spouse, the court looks to the decision made in the Molodowich v. Pettinen 1980, which was endorsed by the Supreme Court of Canada M. v. H. 1999. In the Molodowich decision, the court set out what was needed to prove that a common law relationship existed. One can do no better than to simply reprint those statements and questions:

A word of caution.  These are just factors that the court will look at.  One does not need to meet all of the indicators as every relationship is different.

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:
   What was the conduct and habit of the parties in relation to:

   a.) Preparation of meals,

   b.) Washing and mending clothes,Shopping,

   c.) Household maintenance,

   d.) 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:
   a.) 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
   a.)What was the attitude and conduct of the parties concerning children?

In August of 2024, Justice H.J. Williams in Cassan v. Giroux, applied this applied this legal matrix against a slightly out of the ordinary fact situation. The surviving common law wife argued that she and the deceased had lived in a conjugal relationship for 16 years. The deceased’s children pointed out that the applicant common law spouse had always maintained her own apartment, neither she or the deceased had ever filed an income tax return showing anything other than a single tax status and indeed the deceased had throughout the relationship continuously had relationships with other women and had made financial provision for some of these other women.

The court went through the evidence, applied the various factors from Molodowich and found despite these negative indicators that the parties indeed had lived in a conjugal relationship, the formal term for living in a common law relationship. Support was ordered.

The recent case in Bratusa v. Doersam 2025, ONSC 4726, involved a common law spouse and her young daughter seeking support from a Canadian who died in Costa Rica in September of 2024.He and the applicant had lived in Costa Rica for many years. Nonetheless, she brought an action in Ontario asking for dependent relief i.e. support for herself and their daughter in Ontario. This case ended up before the legendary Justice Fred Myers, who held that the application was being brought in the wrong jurisdiction and should have been brought in Costa Rica. The father left no will. Great work for Estate Litigation Lawyers, not so great for the family. Wills and Estate lawyers would have begged the husband to have prepared a will and not impose on people he supposedly loved the cruelty of fighting for support.

We are not going to get into the specifics, but we are going to highlight the four areas of law that apply to international estate disputes. This of course is a derivative of other civil law disputes and by that we mean noncriminal lawsuits.

1. Jurisdiction simpliciter, which is derived from the Supreme Court of Canada decision in Club Resorts Limited v. Van Breda 2012, SCC 17 and Sinclair v. Venezia Turismo 2025, SCC 27. Both of these cases held that jurisdiction requires a real and substantial connection to the forum.
2. Choice of law, the law of where the deceased lived, specifically their domicile at death governs the administration of personal property, including dependent support claims. Domicile is determined by residence and the intent to remain indefinitely, see McCallum v. Ryan Estate 2002.  Domicile can be tricky to determine, but at its simplest is the answer to the question where is your permanent home?  Estate lawyers encounter this question all of the time
3. SLRA Sections 58 to 74. The Succession Law Reform Act allows the court to order support. The assets that one can make a claim against are extremely wide, including life insurance proceeds. In Costa Rica, no such right existed and therefore this would have been an argument in favor of the claim by the common law spouse and her daughter being heard in Ontario. Wills and Probate lawyers consider these factors.
4. Forum non convenience.  Again, looking at the case of Van Breda referred above, even if a jurisdiction exists, a court can stop the action if another jurisdiction clearly makes more sense looking at factors such as convenience, witness availability, procedural advantages and costs. Estate Litigation lawyers have to weigh these factors in any cross border conflict.

Even though there were advantages to the common law wife to bringing the action in Ontario rather than Costa Rica, Justice Myers felt that there was no strong connection between the claim in Ontario as the common law wife’s life and claims were based in Costa Rica rather than Ontario.

Drafting a Will is not a job for a layman, an online program or even a generalist lawyer who dabbles in drafting Wills. One of the examples of the need for a someone who only practices as a Wills Estate and Powers of Attorney lawyer, is the effect of The Successional Reform Act, section 31 misleadingly titled “substitutional gifts”. Experienced Will and Estate lawyers refer to this section as the anti-lapse provision. If a Will leaves a gift to a child, grandchild or sibling ( which we will call the predeceased relative)  who happens to die before the Willmaker, Section 31 applies. Unless there is a contrary intention in the Will, which we will elaborate upon shortly, the gift to the predeceased relative does not lapse or evaporate, but rather that gift would be divided equally amongst the predeceased relative’s spouse and children equally.  So if the Will does not answer, a question that should always be asked your Wills and Probate Lawyers, what do you want to happen if a predeceased relative dies before you, then instead of the gift lapsing aka evaporating and simply going into the residue pot, it could very easily be paid to predeceased’ s wife or children.

This section is often overlooked, but it is a real landmine and it takes the hand of an experienced Wills and Probate lawyers to deal with. This is something that one who regularly drafts Wills and Powers of Attorney understands and keeps in mind. Failing to appreciate the significance of this section can lead to very expensive estate litigation, triggering the need for Estate Litigation lawyers, and potentially a negligence action against the lawyer who drafted the Will.

We spoke earlier about the contrary intention appearing in the Will and this was discussed in the 2024 ON SC6764 case of Devenport v. Devenport.  The court looked at the four corners of the Will and found no such contrary intention. However, the court did indicate that it was possible to consider extrinsic evidence of intention, although this was stated with great caution.

Examples of a contrary intention would include a general statement that Section 31 does not apply to any gift in the Will, or a condition that a beneficiary must be alive at the time of the willmaker’s death, or if that beneficiary had predeceased that gift would then go to a specific individual or the gift would lapse and then form part of the residue. It is not important that you understand how to effect a contrary intention, but what is important that you appreciate that you need an experienced Wills and Probate lawyers to draft your Will.

While titling this blog article as part 620 is a bit tongue and cheek, there is some validity to that number. We have posted a number of blog articles on the presumption of resulting trust, (use the search window to find all of them) which all relate back to the 2007 decision by the Supreme Court of Canada, in Pecore v. Pecore. As Estate Lawyers we must be alive to the basic concept that the court assumes no one gets anything for free.  If you place a bank account as an example in the joint names of the father and adult daughter, it is not deemed to be a gift upon the father’s death by right of survivorship, but rather it belongs to the late father’s estate. Pecore gives many numbered examples of indicators to defeat the presumption, but there was an unnumbered category.  Justice Rothstein stated the following “I see no reason why courts cannot consider evidence relating to the quality of the relationship between the transferor and transferee in order to determine whether the presumption of resulting trust has been rebutted”.  In other words, one could attempt to argue that the adult daughter had been selfless and provided essential care for the adult father, and that was the reason why the father added the adult daughter’s name to a joint bank account and that there was indeed an intention that upon the death of the adult father, the joint bank account would belong solely to the dutiful daughter. Estate Litigation Lawyers have these principles front and centre.

There were two Court decisions in 2025 that examined this argument. Firstly, Buffa v. Giacomelli. In that case, the mother had named the dutiful daughter as the sole beneficiary of her RRIF and TFSA and had placed her money into a joint account with the daughter. The court gave a lot of weight to the relationship, however in this author’s view, even more importantly was the fact that the mother had signed notes stating her intention to gift the proceeds of these assets to the daughter.

Conversely, we have the Psoma Estate case in which the dutiful nephew had a very close relationship with his aunt, and he had argued that the right of survivorship was a reimbursement of debts he had incurred on his Aunt’s behalf during her life, and as a measure of compensation for the help and support he had provided to his aunt throughout her life. In this case, the court felt it was not enough. Obviously, what is so clear a differentiation from Buffa v. Giacomelli is that there was nothing in writing.  If one has nothing other than the close relationship, and that is all one can argue and one can cite the Pecore court case as evidence to justify that argument, however it generally is not enough.  Competent Will and Estate Lawyers, ask their client’s at the time of drafting if this situation exists and is to covered in the will.