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One of the impacts COVID-19 has had outside of the day-to-day health and safety concerns that are top of mind is the difficulty to travel. In some parts of Canada, airlines have pulled out of serving cities altogether. This brings up difficulties that people might have traveling for pleasure, work, or court. Of course, most courts have resumed operations with virtual hearings, but for many, it’s preferable to be able to participate in trials in a physical setting. When an issue is being litigated across multiple provinces, there may be questions about which province the issue should be heard in. A recent decision from the Ontario Superior Court of Justice serves as a good example of how courts look at issues related to jurisdiction.

Former spouse looks to claim retirement account

The issue in the case relates to the estate of the deceased, whose brother (“TG”) was named executor of the estate. The deceased lived in Saskatchewan, while the TG lives in Ottawa. All of the beneficiaries of the estate also live in Saskatchewan. The deceased was married from 1993 until 1998 and was divorced in 2001. His former spouse (“SRE”) now lives in Toronto.

The deceased’s will left his estate to his parents, both of whom survived him. However, one piece of the estate is being claimed by SRE. The deceased had a Locked-in Retirement Account (LIRA) which was held by CIBC and was worth $137,000 in 2018. SRE was named as the beneficiary of the LIRA.

While doing his duties as executor of the estate, TG asked SRE to sign a release of her interest in the LIRA. He was of the position that the LIRA formed part of the estate and that a separation agreement signed by SRA released her interest in his estate.

SRE believes that she should still be the beneficiary of the LIRA and has asked the court for a declaration that the proceeds from the account be paid to her. TG responded by asking the court to stay or dismiss SRE’s application on the grounds that Ontario does not have any jurisdiction to hear the matter. He intends to apply for probate in Saskatchewan.

Determining jurisdiction

The court noted that a 2012 Supreme Court of Canada decision set out the two-part test that is used to determine jurisdiction. In the first part of the test, the court must determine if it has jurisdiction by looking at a number of factors, including where the respondent lives, where any relevant contracts were signed, where the dispute occurred, or where the respondent carries out business.

TG took the position that SRE did not establish a strong enough connection to have the matter heard in Ontario, stating that numerous tasks related to the estate have taken place in Saskatchewan and that all of the beneficiaries live there.

However, the court found that the low threshold had been met, stating “I find that this fact, and the fact that the CIBC head office is in Ontario is sufficient to establish that the contract is located in Ontario.” The court also placed some importance on TG living in Ontario. The court stated that while the rest of the estate’s administration may take place in Saskatchewan, the LIRA may be determined to not be part of the estate at all.

As a result of these findings, TG’s application was dismissed and the matter will proceed in Ontario.

Contact Derfel Estate Law to speak with an estates lawyer who will guide you through the process of passing of accounts, ensure that your rights and interests are protected, and work with you to achieve the best possible resolution. Call us at 416-847-3580 or contact us online to schedule a consultation.

 

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.

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