Testator’s partner and child who lived with him in Costa Rica unsuccessfully seek dependent support
Citing a lack of jurisdiction, the Ontario Superior Court has permanently stayed an application seeking an order accessing the value of life insurance policies for dependent support claims against an estate under the province’s Succession Law Reform Act, 1990 (SLRA).
In Bratusa v. Doersam, 2025 ONSC 4726, the testator made his will in 2007 while living with his wife in Ontario. The will made her his estate trustee, left all his assets to her, and designated their four children as the beneficiaries of his life insurance proceeds.
The couple moved to the Republic of Costa Rica in 2016–17 and sold their house in Toronto in 2019.
After they separated, the wife brought a family law proceeding against the testator in the Ontario Superior Court. The judge dismissed her claims for lack of jurisdiction upon finding that the parties were not habitually resident in the province.
The testator met his next partner in Costa Rica in 2020. They started living together there and had a child in 2021. This partner and her child were the applicants in this case.
The testator began making testamentary plans to support the applicants, but did not finish them before he died in September 2024. He left more than $4 million in life insurance, but no assets in favour of the applicants.
The deceased’s father, who lived in BC, held the insurance policies in trust for the four children from the marriage under a trust agreement included in the insurance policy documents.
Almost right after the testator’s death, the applicants moved to Ontario. They sought dependent support from the estate under the SLRA. They also applied for orders tracing into the proceeds of the life insurance policies.
The applicants alleged that the wife – who had remained married to the testator despite their separation – had all his properties in Costa Rica, but had impoverished the estate in her own interest despite being the estate trustee.
The wife moved to stay the application. She argued that the Ontario Superior Court lacked jurisdiction to hear it and that the Costa Rican courts could more conveniently deal with the proceeding.
Sections 63 and 72 of the SLRA allowed a court to access the value of assets the estate did not own for dependent support purposes. The parties’ experts agreed that Costa Rica had no equivalent law.
The court explained in the present case that, under Costa Rican law, Costa Rican and Ontario courts would not allow the applicants to access the value of life insurance policies held in Ontario for the benefit of the children of the marriage.
The Ontario Superior Court of Justice permanently stayed the application based on its lack of jurisdiction to hear the proceeding.
The court ruled that the respondents successfully rebutted the presumptive connecting factors that prima facie established a real and substantial connection between Ontario and the circumstances leading to the proceeding.
The court noted that the testator successfully applied to become a permanent resident of Costa Rica, chose the country as his domicile, and never moved or abandoned his domicile.
The court held that the law of the deceased’s domicile governed the administration of his personal property, including dependent support and his personal interest, if any, in the insurance policies held in trust.
The court acknowledged that the testator had some investments in Ontario and bought life insurance in the province. His father, the insurance trustee, said Ontario law applied to the trust. The court accepted that the province’s law might apply between the insurance trustee and the insurer, settlor, and policy payees.
However, the court decided that the existence of trust agreements for insurance proceeds in Ontario did not constitute a strong connection between the province and the proceeding’s issues of whether the applicants were entitled to support from the estate.
According to the court, if it had jurisdiction to hear this proceeding, it would have found that the wife failed to meet the burden to establish that Ontario was a forum non conveniens because there was insufficient basis to deem Costa Rica materially more convenient.
Lastly, the court noted that it had ordered the insurer trustee in May to preserve the insurance policies and proceeds until the outcome of this proceeding. The court now declared that the interim stay should expire on Sept. 19, 2025, as it saw no reason to maintain the interim preservation order.
