Court File and Parties

COURT FILE NO.: FS-19-00013282 DATE: 20230721 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANKUR GROVER Applicant – and – ONAM VAID Respondent

Counsel: Self-represented (Applicant) Unrepresented (Respondent)

HEARD: July 20, 2023

REASONS FOR JUDGMENT

AKAZAKI, J.

[1] On October 1, 2017, the applicant and his then wife returned to their native country, India, to visit relatives. Two days later, the wife, the respondent Onam Vaid, decided not to return to Canada. The applicant did return. In 2019, they were divorced. The applicant is now remarried and has a young child. For years, the respondent has failed or refused to answer the applicant’s attempts to reach her, to refinance the mortgage on the home they bought as joint tenants. The absence of the respondent’s co-signature on real estate financing documents has caused the applicant untold misery, not to mention economic strain on his new family.

[2] Citing the Absentees Act, R.S.O. 1990, c. A.3, the applicant requested a declaration that he is the sole owner. In order for a joint tenancy to devolve into sole ownership, one of the owners must die or be deemed to have died. Absenteeism is not the same as de jure death, pursuant to the Declarations of Death Act, 2002, S.O. 2002, c 14, Sch.. There is no need to embark on that legal analysis, because there is no evidence before the court that the respondent has died or has even been suspected to have died. The evidentiary requirements leading to a declaration of death are quite onerous, and the respondent’s decision to disappear into the Indian populace is not the same as someone missing and suspected of an untimely demise. Survivorship leading to sole ownership is therefore not a remedy available to the applicant. I will, instead, declare the respondent an absentee. The remedy under the Absentees Act is to appoint the applicant the committee of the absentee’s joint interest in the property. I will first introduce the legislation, and then I will deal with the two substantive issues the court must consider to declare the respondent an absentee.

LEGISLATION

[3] Most of the jurisprudence regarding the legal status of absentees arises from the courts’ reluctance to declare people dead under common-law principles. The fear is that people who are alive can return from legal death, to cause havoc to innocent parties who have organized their affairs based on the declaration. See Wasylyk v. Wasylyk, 2012 ONSC 7029, [2012] O.J. No. 5884 (S.C.J.), para. 8. Absenteeism is a statutory invention of a status betwixt the quick and the living. Under s. 2, any person is entitled to bring the application for the order under the Act.

[4] In 1920, the Ontario legislature enacted the original Absentee Act in 1920 to deal with a Toronto man of considerable wealth who disappeared without any evidence to suspect his death: Re Taylor (1925), O.W.N. 497, cited in Kamboj v. Kamboj Estate, [2007] O.J. No. 1732, at para. 8. The legislative purpose, consistent with a reading of this short statute in its entirety, is not the creation of a third class of vital statistic other than birth and death. Nor is it to create some kind of transfer of property interests to joint tenants or to escheat property of missing persons to the Crown. Rather, the purpose of the statute is to allow stakeholders in the missing person’s property to control, manage and dispose of it.

[5] The salient provisions of the Act are found in ss. 1, 2, and 8:

Definition

1. An absentee within the meaning of this Act means a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead. R.S.O. 1990, c. A.3, s. 1.

Declaration by court

2. (1) The Superior Court of Justice may by order declare a person to be an absentee if it is shown that due and satisfactory inquiry has been made, or may direct such further inquiry to be made and proceedings to be taken as the court considers expedient before making any order. R.S.O. 1990, c. A.3, s. 2 (1); 2006, c. 19, Sched. C, s. 1 (1).

Lands in Ontario of foreign absentee

8. Where a person who has had his or her usual place of residence or domicile out of Ontario and who has an interest in land in Ontario has been declared to be an absentee by a court of competent jurisdiction, the Superior Court of Justice may by order, upon being satisfied that the person has disappeared, that his or her whereabouts is unknown and that there is no knowledge as to whether the person is alive or dead, appoint a committee with such authority to manage, sell or otherwise deal with the interest in land as in the opinion of the court is in his or her best interests and those of his or her family. R.S.O. 1990, c. A.3, s. 8; 2006, c. 19, Sched. C, s. 1 (1).

[6] Between ss. 2 and 8, the Act provides for procedures to undo the declaration in the event the person comes forward, and for the appointment of a committee for the custody, care and management of the absentee’s property. Section 5 states that a trust company may be appointed a committee, but I do not read the facultative word “may” to disentitle an individual such as the applicant from being appointed committee.

[7] To appoint the applicant as a committee, the applicant must satisfy the court that the respondent is an absentee, in accordance with the statute. If I were to rule that the respondent is an absentee, the legal algorithm leading to such a conclusion also requires the court to consider the operation of an Ontario statute that affects the status and rights of a person now domiciled in India, including the evidence of the inquiry into the missing person and the interest of the applicant. In concluding that the applicant should be appointed committee of the respondent’s interest in the property, I will address these issues in turn.

ONAM VAID’S STATUS AS ABSENTEE

[8] Before determining whether s. 1 or s. 8 applies, I extract from both sections three conditions that qualify a missing person to be considered an absentee, separate from any inquiry into the diligence of efforts made to find the subject:

1. disappearance
2. lack of knowledge of whereabouts
3. lack of knowledge whether the individual is alive or dead

[9] The legislative intent of the original Ontario statute in the 1920s, as captured in Re Taylor, was to help those left behind to deal with the property of the missing person. Indeed, the statute is rather compact and has everything to do with property left behind. In my view, the three elements defining the absence of the person very much depend on the factual context. If the person were last seen in Toronto, there would have been means to locate him or her. Here, the applicant last saw the respondent at the home of her parents in India. He had to come back because he had responsibilities and a life in Toronto.

[10] This case therefore requires the court to apply the Absentees Act in the context of Ontario’s multicultural and globalized society in the 21st century. There are two notable countries that are both vast and populous and whose citizens comprise many immigrants settling in Ontario. Perhaps in the People’s Republic of China, with the authoritarian organization of its state institutions, it would be harder for someone to disappear voluntarily. India, a democracy whose decentralized state apparatus is less geared to the control and surveillance of citizens, presents a greater challenge for a party looking for a person who does not wish to be found. In a country whose souls can be counted only in approximate figures but in the billions, people who do not wish to return to a past life do not require much effort to carry on with a new one.

[11] It is possible that Ms. Vaid knows nothing of her ex-husband’s ordeal in having to sort out the legal fallout in Canada of her abandonment of the marriage. One might conclude, as the applicant has done, that his ex-wife has abandoned the property and believes that he is the sole owner. Or she may simply want to have nothing further to do with her time in Canada and is content to have left the applicant struggling with the mortgage. These details are unknown, but the lack of knowledge is a function of the irresponsible manner of her abandonment of the marriage. Ownership of land, as any estate, carries legal responsibilities. It may be that the applicant could find her by going to the place where her parents reside and spending days, weeks, or months looking for her. That is not a practical requirement in the circumstances.

[12] There are two policy reasons against declaring the respondent an absentee. The first is that her joint ownership is a bundle of rights that should not be dealt with lightly. Control over property cannot be stripped away simply because one owner’s failure to deal it. Property ownership involves control and exclusion – two forces that can be used legitimately at the expense or hardship of another, even to perform a mischief. Absenteeism in land ownership is, in itself, a source of historical social unrest, but it has not been outlawed. The second policy rationale against restricting the property rights of absentees is that it could open the floodgates to misuse of the legislation. Both factors against adjusting the requirements to suit modern realities appear to go to the standard of inquiry under s. 2. They do not, at this stage of the analysis, affect the fact that, from the standpoint of the applicant, the respondent has disappeared, her whereabouts are unknown, and it is unknown whether she is alive or dead.

[13] On the last point, perhaps the applicant could have determined whether the respondent has died, by performing a search of the registers of death in the municipality or district where he last saw her. A positive death certificate would have had the effect of making him the survivor of her joint interest in the property. All that would have been required was to have the certificate apostilled for registration in the Ontario Land Titles Office, and this proceeding would have been unnecessary.

[14] Apart from the practical realities in play, the law of Ontario must adapt to the reality that it is a mecca for immigrants from around the globe to settle and contribute to its rich society and economy. Nevertheless, moving here is not for everyone and it is not a decision that one can reverse on a whim, without first putting one’s legal affairs in order. Otherwise, persons such as the applicant will be victims of such caprice. It is unconscionable to leave such victims behind and to jeopardize the economic and domestic interests for which persons like the applicant have invested. The duty of this court is to interpret statutes of Ontario as “always speaking” and “as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects”: Legislation Act, 2006, SO 2006, c 21, Sch. F, s 63.

[15] The purpose of the Absentees Act is modest in scope in that it does not destroy the property interest of the absentee. It allows the appointment of a committee. The relief the court can provide is to allow the applicant sufficient legal control over his ex-wife’s interest in the land that he can refinance it and possess it to raise his new family.

DOMICILE OF THE ABSENTEE

[16] Assuming my statutory interpretation is correct and the respondent’s decision to live indefinitely and incognito in India satisfies the requirements under the Absentees Act, I must still deal with the fact that the legislature requires the absentee to come within two verbal categories, depending on usual residence or domicile immediately prior to disappearance. Ms. Vaid, who immigrated to Canada in 2013, bought the house with the applicant in 2016, and “disappeared” two days after landing in India with a settled intention not to return to Ontario. Section 1 describes a person who has disappeared while having had her usual domicile in Ontario, and s. 8 refers to a person who has had her usual domicile outside Ontario and has been declared an absentee.

[17] The statute sorts people according to the usual residence or domicile at the time of disappearance. The words, “having had” and “has had,” in the context of the purpose of the statute, wrestle as best as the language can with the existential construct of the immediate past of a person who has since disappeared.

[18] The choice of law of a person’s status is determined by the law of the place where the person is domiciled. Domicile of origin is received at birth. Domicile of choice is received after moving to a place with the intention of remaining indefinitely. See Cariello v. Father Michele Perrella, 2013 ONSC 7605, at paras. 53-57. The choice of law with regard to interests in property is governed by the law where the property is located, and not by domicile: Tezcan v. Tezcan. By strict operation of the common-law rules of conflict of laws and the wording of the statute, s. 8 contemplates that Ontario law (viz. the Ontario Absentees Act) applies to the property in the instance where a person ordinarily resident or domiciled in another jurisdiction is declared an absentee in accordance with the laws of the foreign jurisdiction.

[19] In my view, the fact the legislature has required the court to choose between ss. 1 and 8 does not mean there may be a gap between them through which the respondent might fall. The court has a duty to interpret the statute, especially s. 8, as intending fill gaps and not to create them: See Sullivan, The Construction of Statutes, Seventh Ed. (Toronto: Lexis Nexis Canada Inc., 2022), p. 375. In the facts of this case, the respondent’s domicile of origin of India, and the domicile of choice at the time of her “disappearance” from the applicant’s vantage was also India. The fact that her domicile at the time of acquisition of the property was likely Canada introduces some ambiguity to the situation, but not enough to oust her domicile at the time of her absentee status for the purpose of the statute.

[20] The analysis in the foregoing paragraph would conclude that the applicant must either obtain a declaration from an Indian court or prove Indian law in this court. Since the declaration for the purposes of dealing with the property of the absentee in Ontario is ancillary to the appointment of a committee in Ontario, the Ontario Superior Court is a court of competent jurisdiction, although for not the same reasons as the competence of an Indian court. A court of competent jurisdiction is one that has jurisdiction over the person, the subject matter and the remedy: Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75, at para. 22. Since the person is not here but the property is, the power to declare the status of the person is limited to the portion of her estate situated here. Declaring her an absentee for the purposes of the Ontario property does not make her an absentee in terms of civil status in India.

[21] The divergence in the definitions of absentee in ss. 1 and 8 is a subtle one. The foreign usual residence or domicile removes the s. 8 absentee from the general definition in s. 1. Section 2, granting jurisdiction to the Superior Court to declare a domestic absentee, is at least partly incongruous with s. 8 in that s. 8 relies on a declaration by any court of competent jurisdiction and is therefore a more expansive category. It therefore does not take the brain of Euclid to notice the intention to make ss. 1 and 2 complementary with s. 8 but that the geographical limitation in the general definition in s. 1 applicable to s. 2 (“An absentee within the meaning of this Act”) prevents s. 2 from being applicable to s. 8. The appearance of incongruity requires the court to determine whether conflicts of laws rules must be invoked. The wording of s. 8, invoking potentially the jurisdiction of foreign courts, clearly indicates that there must be a conflicts analysis.

[22] As a matter of judicial economy and convenience, common-law rules regarding choice of law create a presumption that Ontario law applies unless foreign law is proved as being different from Ontario law: Key v. Key, [1930] 3 D.L.R. 327 at 329 (ON CA). This approach appears to bring s. 2 into the s. 8 analysis through the back door, but only if one were to substitute India for Ontario in the domicile element in the definitions in ss. 1 and 8. This principle of conflicts of law has the following effect:

1. The definition in s. 1 states that an “absentee” within the meaning of the act is a person ordinarily resident or domiciled in Ontario at the time of disappearance. This definition applies to s. 2, which uses the word “absentee” simpliciter.
2. The provision in s. 8 for a person ordinarily resident or domiciled outside Ontario (foreign absentee) cannot be an absentee as defined in s. 1. Rather, the person is described as a person declared an absentee by a court of competent jurisdiction.
3. Where the Superior Court of Ontario is the court in s. 8, the source of its competence requires a reference back to s. 2, qua Ontario law standing in for Indian law in the absence of expert evidence from an Indian legal practitioner.

[23] The importance of the foregoing logic is that without a source of law in the common law of Ontario, the Superior Court must rely on the statute to exercise jurisdiction. Thus, it is possible for a foreign court to have more relaxed (or tougher) standards about the efforts to locate the missing person, but the Superior Court’s jurisdiction under s. 2 anchors the legal inquiry in a manner that harmonizes domestic and foreign cases, where the issue is the person’s ownership of property in Ontario. Any analytical attempt to free this court of s. 2 would cause it to lose jurisdiction under the wording of s. 8. (There remains one unresolved anomaly in the last word of s. 8, but I will return to it right before the conclusion to these reasons.)

[24] Obviously, it would have been preferable for the legislature to have harmonized ss. 1 and 8 more expressly. Nevertheless, the court must adhere to Lord Halsbury’s statement, “Whatever the real fact may be, I think a Court of Law is bound to proceed on the assumption that the legislature is an ideal person that does not make mistakes”: Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 at 549, cited by Sullivan, op. cit., at p. 363.

[25] I therefore conclude that I am bound to exercise my jurisdiction by reference to s. 2 of the Act. The section employs the word “may,” denoting a discretion to consider evidence of due and satisfactory inquiry. The applicant must present evidence of “due and satisfactory inquiry” into the location and status of the missing person. I will now turn to this issue.

DUE AND SATISFACTORY INQUIRY

[26] The evidence of the applicant described the respondent’s abandonment of the marriage and refusal to return, followed by the attempts to serve the divorce application through the Indian central authority under the Hague Convention. The continuing court record leading to this uncontested trial shows that the court was satisfied that efforts were made to serve the respondent through the proper channels, respecting the sovereignty of India. The court is able to conclude that either (a) the respondent received the divorce application, including the claims regarding property herein, and did not care to respond; or (b) that the central authority was unable to locate her. Respecting the sovereignty of the contracting state, I must presume that the efforts made to serve the respondent must have been equivalent to that of law enforcement authorities on receipt of a missing-persons report.

[27] Generally, the court jurisprudence on the issue of “due and satisfactory inquiry” for a declaration of absenteeism has evolved from being a lighter form of an inquiry required for a declaration of death. Indeed, the 1920 original statute required proof beyond a reasonable doubt. With this burden of proof, the earlier version of the statute was not intended to cover cases where a person conceals himself: Kamboj v. Kamboj Estate, at paras. 15-16. Kamboj involved a missing person whose clothing was found on the banks of the Niagara River, between the river and his abandoned car. This court did not accept the efforts made to locate the person, because of a concern that “his disappearance was staged.” It is not hard to see how the jurisprudence for declarations of death crept into the case law for absentees, but the courts have so far failed to come to grips with the true purpose of the absentee legislation: the protection of the interests of those left behind.

[28] Ordinarily, the efforts used to find a missing person entails a report to police as well as private investigations. A claim by the inquiring party that they made an attempt to contact the missing person at the last known location or with the next of kin would not suffice in most instances. Indeed, people should be allowed to disappear and have their privacy respected, if they choose to do so, without the peril of having a court making declarations of status.

[29] Any treatment of the Absentees Act in its current form, still as a less rigorous version of the Declarations of Death Act, unduly constrains the remedial nature of the legislation in situations where the imposition of exhaustive standards would be impractical, onerous, and unfair to the parties left behind. The phrase, “due and satisfactory inquiry” on its plain and ordinary meaning, turned the dial toward the antipode of the “beyond reasonable doubt” standard and is even less stringent than the standard under rule 16.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for dispensing with service where all reasonable steps have been taken to locate the party: Ramnarine v Marino, 2021 ONSC 5935, at para. 4. Undefended suits in which service is waived under that rule can and do affect and extinguish civil property rights all the time.

[30] At a procedural level, parties must understand that the failure to respond to litigation can result in compromise or even loss of property rights. There is also no reason to suspect that the applicant has staged the events in question. Indeed, the legislation must be read in a manner that discourages parties with whom property interests are shared, such as spouses, from abandoning their responsibilities and quitting the jurisdiction for good without putting their legal affairs in order. In fact, s. 8 specifically inserted the interests of the family left behind in shaping the mandate of the committee. I will conclude my statutory interpretation with a consideration of the significance of this legislative insertion.

“FAMILY”

[31] Even if the textual incongruities between s. 1 and s. 8 can be resolved in this case by reference to choice-of-law rules, the insertion of the interests of the absentee’s family in s. 8 distinguishes that section from s. 1. Section 8 concludes with the appointment of the committee as being guided by the “opinion of the court” of the absentee’s “best interests and those of his or her family.” This inclusion of the family does not appear in the terms of appointment of a committee for the purpose of a domestic Ontario absentee, pursuant to s. 1. The statute requires that I protect the interests of the applicant as the then husband and continued joint owner of the property.

[32] At the time of the respondent disappeared, as defined by s. 8, she was married to the applicant. The legislature clearly intended to address the very issue in this case, where the absentee has left behind a family – her husband – with various obligations of property ownership. The statute clearly contemplates that the committee’s mandate to control and deal with the interest in the property includes the husband and joint owner. The equivalence of the interests of the absentee’s family, in the concluding words of the legislation, clearly requires the court to consider the effect of the absentee’s non-involvement with the property on the family left behind.

[33] In the circumstances, my appointment of the applicant as committee may ultimately have the same effect, for practical purposes, as granting his request for survivorship. By being free to deal with the property both as joint owner and as committee for the other joint owner, he is at liberty to sell it and convert it into funds to be used to buy another property. The concept and role of a committee usually comes up in the case of mental or other incapacity. This is a fiduciary role. However, as I read s. 8, the power the court confers on the committee includes the sale of the property. As in the case of any fiduciary, the committee here has a duty to account for the absentee’s undivided joint share, or any funds or property that can be traced back to it. Unlike a person with an incapacity, the committee of the foreign absentee has been put in this position by the absentee. The legal burden of protecting the interests of a person who has abandoned a property interest could be as light as the weight given to it by the abandoner.

[34] Thus, if the respondent were to return to Canada and apply to be declared as no longer being an absentee, under s. 3 of the Act, she will have the right to hold the applicant accountable for the joint share. That share would be subject to the equities and the legal requirements associated with net family property under the Family Law Act, R.S.O. 1990, c. F.3. She would also have to assert her rights in accordance with one or more statutes of limitation. If she were never to come back, I do not see why the applicant should not be entitled to enjoy his own joint undivided interest as if he were the ultimate sole owner. Indeed, once the property is sold by the committee to a third party, her rights would be enforceable only against the applicant for her share, whatever that may turn out to be.

[35] I would encourage the applicant to consult a lawyer to obtain advice on what his rights and obligations are toward the interest of the absentee. For the moment, however, until the absentee returns to the jurisdiction to change her status, the applicant should be able to act as both in order to refinance the home and to alleviate that source of stress on his new family.

CONCLUSION

[36] I therefore hold that the respondent’s abandonment of the marriage and her contingent domicile in Ontario, combined with the efforts to serve her with process that led to the leave given to proceed by way of uncontested trial, as well as the applicant’s attempts to reach her to regularize the financing of the property, have satisfied the requirements of “due and satisfactory inquiry” under s. 2 of the Absentees Act. I therefore make the following order:

1. This court declares the respondent an absentee pursuant to s. 8 of the Absentees Act.
2. This court appoints the applicant as the committee of the estate of the absentee in respect of property in Ontario. The formal order shall include the property description of the matrimonial home and a provision that the applicant shall have the power to manage, encumber, sell or otherwise deal with the absentee’s interest.

[37] The applicant is entitled to costs of the proceedings and may draw any amounts awarded from the proceeds of any sale of the property. If the applicant wishes to make a claim for costs, he shall file a bill of costs with the court within 20 days. The court office is hereby directed to forward the bill of costs to my attention.

Akazaki, J.

Released: July 21, 2023