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.
- 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.
- 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
- 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.
- 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.
