Molly Rebecca Krishtalka

The appellant's spouse disappeared in 2008.

In 2016, the appellant obtained a declaratory judgment of death.

The respondent life insurance company subsequently applied to annul the judgment, presenting evidence that the spouse was alive and living in Iran, but failed to serve the spouse with the application.

The trial judge annulled the declaratory judgment of death, finding on a balance of probabilities that the spouse had 'returned' within the meaning of the Civil Code of Québec.

The Court of Appeal upheld the decision.

The Supreme Court of Canada dismissed the appeal, holding that while the failure to serve the spouse was a procedural defect, it did not warrant dismissal of the application as it caused no prejudice.

The Court further held that the 'return' of a person declared dead can be established by any contemporaneous manifestation that they are alive, proved on a balance of probabilities, without requiring their physical return or a higher standard of certainty.

The appellant wife and the respondent husband filed parallel divorce proceedings — the husband first in Belgium, the wife three days later in Quebec.

The husband applied to stay the Quebec proceedings on the basis of international lis pendens under art. 3137 C.C.Q., seeking to enforce his revocation of over $33 million in gifts made during marriage under art. 1096 of the Belgian Civil Code.

The Supreme Court held that the burden of proving susceptibility of recognition of the foreign judgment rests on the party seeking the stay, though that burden is not onerous; a prognosis or possibility of recognition suffices.

The majority further held that even where the conditions of art. 3137 C.C.Q. are met, the Quebec court retains discretion to decline to stay its ruling, and that discretion was not unreasonably exercised by the Superior Court.

The Court of Appeal's intervention in the trial judge's exercise of discretion was unwarranted; the criterion of possible recognition of the Quebec judgment in the foreign country is not determinative where the Quebec judgment would be effective in Quebec.