Superior Court should’ve treated Ontario residence as presumptive connecting factor: appeal court
For dependant support claims under Ontario’s Succession Law Reform Act, 1990 (SLRA), the Ontario Court of Appeal ruled that a judge should have considered the claimants’ presence in the province as a presumptive connecting factor and decided that the estate trustee failed to rebut the presumption.
The case was Bratusa v. Doersam, 2026 ONCA 792.
In 2008, Ms. Dawson and Mr. Doersam married. In 2017, they relocated from Ontario to Costa Rica. Among their four children, the three eldest were born in Ontario, while the youngest was born in Costa Rica.
In 2007, Mr. Doersam made a will designating Ms. Dawson as his estate trustee and leaving all his assets to her.
In Ontario, Mr. Doersam purchased life insurance policies worth more than $4 million. He named his four children with Ms. Dawson as beneficiaries of the policies, which were subject to a trust agreement designating his father, a British Columbia resident, as trustee.
Ontario Divisional Court case
The couple separated in 2020.
On July 12, 2022, Justice Kristjanson of the Ontario Divisional Court decided that the court lacked jurisdiction over the family law proceedings Ms. Dawson attempted to initiate in the province.
Further events in Costa Rica
In Costa Rica, Mr. Doersam and Ms. Bratusa met in 2020, had a child named Olivia in 2021, and resided together from 2021 to 2024, when Mr. Doersam passed away.
Before dying, Mr. Doersam had begun planning how to support Ms. Bratusa and Olivia. However, he died before finalizing these plans and before leaving them anything in his will or through life insurance policies.
Soon after Mr. Doersam’s death, Ms. Bratusa and Olivia relocated to Ontario and began residing in Toronto, where Olivia attended school and Ms. Bratusa worked. Born in Ontario, Ms. Bratusa originally lived in the province and went to teachers’ college there.
Costa Rica proceedings
In Costa Rica, Ms. Bratusa commenced maintenance claims on Olivia’s and her own behalf. These maintenance claims failed because Ms. Bratusa had filed family law proceedings instead of dependant support claims under Costa Rican estates law.
Application and motion at Ontario Superior Court
In an application before the Ontario Superior Court of Justice, Ms. Bratusa and Olivia sought access to the value of life insurance policies for dependant support claims against the estate under s. 58 of the SLRA.
Ms. Bratusa alleged that the life insurance policies were the main remaining asset because Ms. Dawson had depleted the estate.
In response, Ms. Dawson moved to stay the application.
On Aug. 15, 2025, Justice Frederick L. Myers of the Superior Court permanently stayed the application for lack of jurisdiction. The motion judge rejected Ms. Bratusa’s request for the estate to bear the costs and directed her to pay Ms. Dawson $88,937.81.
Court of Appeal for Ontario’s ruling
Ms. Bratusa and Olivia appealed.
The Ontario Court of Appeal allowed the appeal upon determining that the Ontario court had jurisdiction over the appellants’ dependant support claims. The appeal court awarded the appellants the motion costs and the appeal costs.
Real and substantial connection to Ontario
The Ontario Court of Appeal pointed out that this was a dependant support claim, not a tort claim. The appeal court likened dependant support to support under family law.
The appeal court held that the motion judge erred in applying the real and substantial connection test and in concluding that the appellants’ Ontario residence was not a presumptive connecting factor.
The appeal court saw a real and substantial connection between the appellants’ dependant support claims and Ontario. The appeal court noted that the motion judge had deemed Ontario a convenient forum for litigation.
“The residence of the claimant at the time the claim is made is a recognized presumptive connecting factor in the family law context and should equally be recognized in the context of a claim for dependant support,” wrote Justice L. Favreau for the appeal court. “This is not a weak connection.”
As Ms. Dawson had failed to overturn this presumptive connecting factor, the appeal court considered it unnecessary to discuss the application of the doctrine of necessity.
Ontario Court of Appeal’s other estate cases
Last May 21, a three-justice panel of the Court of Appeal for Ontario declined to reconstitute itself as the Divisional Court to address an application for leave to appeal from a Superior Court order interpreting s. 21.1 of the SLRA.
On Nov. 5, 2025, the appeal court affirmed a determination that the anti-lapse provision of s. 31 of the SLRA applied because the terms of a will showed no contrary intention that rendered s. 31 inapplicable.
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