Following Russia’s 2022 illegal invasion of Ukraine, nearly 300,000 Ukrainians arrived in Canada under the Canada-Ukraine Authorization for Emergency Travel (CUAET) program. While the CUAET program was intended as a temporary refuge, the ongoing war, the unpredictability of return, and lengthy immigration processes raise an important question: what happens if a Ukrainian temporary resident passes away in Canada? With permanent residency often delayed and no clear end to the war in sight, we must be prepared to address the potential succession and estate administration of these individuals, many of whom may die without a will, with assets and family members across borders.
Canada is home to roughly 1.4 million individuals of Ukrainian heritage, representing nearly 4% of the country’s population. It also hosts the world’s second-largest Ukrainian diaspora. These strong cultural and familial ties, combined with cross-border estates, create complex legal challenges for families, executors, and advisors.
1. Why Domicile Matters in Estate Law
In cross-border estates, domicile at death determines key outcomes:
- Which jurisdiction’s law governs movable property
- Whether a foreign will is valid
- Which country’s intestacy rules apply
- Whether a Canadian court can grant probate or administration
Domicile differs from residency or citizenship. A person may live in Canada but remain domiciled in Ukraine unless they intend to make Canada their permanent home.
2. Did CUAET Entrants Establish Domicile in Canada?
CUAET participants held open work and study permits, not permanent residency. Many retained strong ties to Ukraine including, property, finances, family, and planned to return after the war. Legally, most remained domiciled in Ukraine, even after a year or more in Canada.
Domicile shifts only when a person abandons their prior domicile and forms a settled intent to reside permanently in the new location. Applying for permanent residency may serve as evidence of such intent.
3. Succession vs. Administration in Cross-Border Estates
Estate law distinguishes between succession (who inherits the property) and administration (how the estate is handled regarding debts, probate, and distribution). These follow different rules:
- Movable property (e.g., bank accounts, shares, personal property) is governed by the law of the deceased’s domicile at death
- Immovable property (e.g., real estate, land) is governed by the law of the location of the property (lex rei sitae)
Section 34 of Ontario’s Succession Law Reform Act (SLRA) codifies this in testate estates. The classification of assets is determined by the law where the asset is located (lex situs).
Example: A Ukrainian national who died while temporarily in Toronto may have their Canadian bank accounts (movables) governed by Ukrainian law, but Ontario law would still govern the administration of those accounts.
4. Probate in Ontario with No Will and a Foreign Grant
If a person dies intestate and their estate has already been administered in Ukraine, Ontario allows for a streamlined probate process if:
- The deceased was domiciled outside Ontario; and
- A foreign estate trustee was appointed in a non-Commonwealth country.
In these cases, the foreign trustee must nominate an Ontario resident to apply for a Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee without a Will under Rule 74.05.1 of the Rules of Civil Procedure.
Required Documents:
- Form 74J and 74K
- Certified copy of the foreign appointment, attached to an affidavit
- Certificate from the foreign court confirming the appointment is current (dated within 6 months)
- Security (bond) equal to the value of Ontario assets (unless waived)
- Draft Form 74C
- Estate administration tax
- Notarial death certificate
- Any additional documents the court may require
If the foreign court cannot provide a certificate, the applicant must explain this in the affidavit. The matter will then likely be referred to a judge. The court may waive the bond if all beneficiaries consent.
5. Probate in Ontario with a Foreign Will
CUAET entrants may have created wills in Ukraine or other jurisdictions. If they held Ontario property, an estate trustee can apply for a Certificate of Ancillary Appointment of Estate Trustee with a Will under Rule 74.09. This process allows an estate trustee appointed by a foreign court in a non-Commonwealth country, such as Ukraine, to administer Ontario assets without applying for a full certificate of appointment in Canada.
Key Points:
- The applicant does not need to reside in Ontario
- No beneficiary nomination is required
This route is practical for Ukrainian executors who must manage Canadian assets.
Required Documents:
- Form 74J
- Two certified copies (or original + certified copy) of the foreign grant and will (dated within 6 months)
- Draft Form 74C
- Security (bond), unless waived
- Estate administration tax
- Notarial death certificate
- Additional materials, such as translations or affidavits of execution, as needed
6. Tips for Practitioners
- Clarify the deceased’s intention, was Canada a temporary refuge or a new home?
- Gather proof of ties to Ukraine or Canada (e.g., PR applications, property, employment)
- Work with Ukrainian counsel to coordinate probate
- Plan for delays obtaining foreign documents or seals
Final Thoughts
As the war in Ukraine continues and more Ukrainians settle in Canada, it is essential to consider the legal implications if temporary residents pass away in Ontario. These issues go beyond Ukraine. In a time of global political instability and mass migration, the intersection of immigration, temporary status, and estate law demands greater attention. By addressing these questions now, we can ensure displaced individuals are treated with dignity and their legacies properly honoured.
Thank you for reading,
David Morgan Smith & Andriana Ozymtchak (Student-at-Law)