Dependants of the deceased can bring an application for support if inadequate provision has been made for them by the deceased in his/her will. However, the process to bring this application can become complicated if more than one jurisdiction is at play.

The case of Torres v Ettinger et al., 2022 ONSC 3205 speaks to the issue of whether a dependant support application should be stayed because Ontario does not have jurisdiction. The applicant in this case cohabited with the deceased prior to his death in Monaco and no provision was made for her in the deceased’s will. The will was drafted in Monaco and the majority of the assets were also in Monaco. However, the will provided that the law of Ontario be applied. The question became whether the applicant’s application for support could be heard in Ontario or whether it should be determined by the Monaco Court.

The leading case on jurisdiction simpliciter is Club Resorts Ltd. v Van Breda, 2012 SCC 17 which sets out the “real and substantial” test to determine which court has jurisdiction where there is a conflict. The party seeking that the court assume jurisdiction must identify a presumptive connecting factor that links the subject matter of the litigation to the forum. There are four connecting factors, any one of which may establish a rebuttable presumption of jurisdiction. The factors are:

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

The court in this particular case determined that there were various factors that created a real and substantial connection between Ontario and the estate, including the application itself being brought under Ontario law and the fact that one of the estate trustees resided in Ontario. Therefore, the court concluded that there were sufficient connecting factors in Ontario to find jurisdiction simpliciter, however, the court then had to determine if Ontario was the most convenient forum for this application.

The doctrine of forum non conceniens allows the court to decline jurisdiction where there is clearly a more appropriate forum. The other party must identify another forum that has an appropriate connection under the conflicts rules. They must then demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.

In the case of Torres v Ettinger et al., the respondents argued that Monaco should be chosen and they presented a list of evidence to prove as such, including the following:

• The applicant herself was a resident of Monaco;
• The relationship between the applicant the deceased took place in Monaco;
• The will was created in Monaco;
• The deceased lived and died in Monaco; and
• The estate was administered in Monaco.

The court found that Monaco was the more convenient forum for this matter. This was because the majority of witnesses, documents, property and evidence were located in Monaco. Most importantly, the estate was being administered there and the evidence related to the applicant’s claim stemmed form the parties’ time together in Monaco. The court further found that any obstacles such as the uncertainty of whether Monaco would apply a foreign domestic statute which involves judicial discretion could be dealt with by the appropriate Order if Monaco refused to apply the Succession Law Reform Act.

This case reiterates important principles on jurisdiction when it comes to estate litigation and dependant support applications. In a world, where now more than ever, people are choosing to have multiple residences across the world and hold assets in different countries, it is necessary to ensure that the most appropriate jurisdiction is chosen so that all parties are treated fairly in litigating their support claims.

Thank you for reading.