Court File and Parties

COURT FILE NO.: 01-1289/11 DATE: 20121211

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Pearl Wasylyk Applicant

– and –

Oksana Wasylyk and Odarka Wasylyk Respondents

Counsel: Stefan Bojeczko, for the Applicant No one appearing for the Respondents

HEARD: December 4, 2012

BEFORE: E.M. Morgan J.

Reasons for Judgment

[1] Michael Wasylyk has not been seen or heard from by his family for 16 years. The Applicant, who is Michael’s stepmother and Estate Trustee for the estate of Michael’s late father, Iwan Wasylyk, applies for a declaration under sections 2(3) and (5) of the Declarations of Death Act, 2001, SO 2002, c. 14 (the “Act”), that Michael has died.

[2] Michael’s father Iwan died on November 30, 2009. According to documentation filed in respect of Iwan’s estate, Iwan’s first wife and Michael’s natural mother died in 1973. Apparently, Michael’s only other living relatives are the Respondents, who are his two half-sisters (i.e. the daughters of the Applicant and Iwan). The Respondents have filed a joint affidavit stating that they agree with their mother that the court should declare Michael to be dead.

[3] The Applicant discloses that her interest in seeking this declaration has to do with the fact that Iwan died intestate. Iwan’s one asset of value was the family home, valued at $367,500.00. Under the Succession Law Reform Act, RSO 1990, c. S.26, the Applicant is entitled to the first $200,000.00 of Iwan’s estate plus one-third of the balance of the estate. His children – the two Respondents and Michael – share equally in the remaining two-thirds of the value. Michael’s inheritance, in other words, is worth approximately $37,222.22. Michael’s portion must be paid out by the Applicant before Iwan’s estate administration can be completed.

[4] Although it is not specifically stated in the affidavits filed by either the Applicant or the Respondents, the fact is that if Michael is declared to have died the balance of Iwan’s estate that would have been divided between Iwan’s three children will be divided between the Respondents as the two remaining children. Michael’s portion of the money owed to it by the estate of Iwan will then be paid in equal shares to the Respondents. Accordingly, while it is the Applicant who is seeking a declaration of death under the Act, the Respondents have a direct financial interest in that outcome.

[5] I do not mention this to insinuate any impropriety on the parties’ part. However, I do think it worth noting that although the title of the proceeding contains an Applicant and two Respondents, the Application is not an adversarial one. The Applicant and the Respondents seek the same relief, with no one else having been given notice of the remedy sought.

[6] In these circumstances, a court must be attentive to a number of colliding interests. The United States Supreme Court catalogued these interests a century ago: “First, the interest of the person himself who has disappeared…Second,…the rights of third parties against the absentee…Third, finally, the general interest of society which may require that property does not remain abandoned without someone representing it and without an owner.” Cunnius v. Reading School District, 198 US 458, at 470-471 (1905).

[7] For the most part, the Act codifies the common law with respect to missing persons. Judicial intervention in this area is, of course, designed to foster the administration of justice and the orderly transfer of property in unfortunate situations where a person has gone missing. It is equally the case, however, that it may produce injustice if invoked too casually.

[8] In a scholarly article aptly named “The Rights of the Living Dead”, 50 La. L. Rev. 901 (1990), Professor Jeanne Louise Carriere has recounted numerous Martin Guerre-like cases of persons who were declared by courts to have died, only to later reappear and make claims to property and family entitlements disposed of in their absence. See Natalie Zemon Davis, The Return of Martin Guerre (Cambridge, MA: Harv. U. Press, 1983). These cases of “spectral reemergence from the dead” as one U.S. court has called them, Martin v. Phillips, 514 So 2d 338, at 339 (Miss. 1987), present remarkably difficult legal problems that often pit innocent parties against each other. It is therefore important to review in the most careful way the circumstances of a missing person’s disappearance and possible whereabouts.

[9] Both the common law and the current statutory regime in Ontario contain a seven year rule, such that a person who has been absent in every respect for seven years can be deemed to have died. The Act, however, contains one significant departure from the common law. The common law courts in England had developed a presumption of death once seven years passed without any sign of the missing person. Doe d. George v. Jessen, 102 Eng. Rep. 1217 (KB, 1805). Rather than presuming a person alive until further proof of death, the English courts in the early 19th century pronounced that, “[w]here a person goes abroad, and is not heard of for seven years, the law presumes in fact that such person is dead.” Nepean v. Doe, 150 Eng. Rep. 1021, at 1028 (Exch. 1837).

[10] The current Act in Ontario, while it enacts the common law presumption, puts an onus on the applicant for the declaration to prove that efforts have been made to find the missing person. The real question, therefore, is the level of search that the applicant made before the presumption of death is triggered. That question has been of some debate in those jurisdictions that have adopted a similar rule.

[11] In the United States the debate has ranged from Nebraska, where an unexplained absence for the requisite number of years suffices to establish the presumption of death, Banks v. Metropolitan Life Insurance Co., 8 NW 2d 185 (1943), to Iowa, where an applicant must demonstrate that “diligent inquiry” has been made as to the absentee’s whereabouts, Lemire v. National Life Association, 191 NW 67, at 68 (1922), to New York, where an applicant for a declaration must have undertaken a “thorough and exhaustive search” for the absentee, In re Katz’s Estate, 239 NS 722, at 736-737 (1930). One court in Illinois has gone so far as to hold that not only must there be a thorough search, but that search must be shown to have commenced at the time of the person’s disappearance “without awaiting the accrual of some pecuniary advantage to be gained by his death or the passage of the period mentioned in the statute…” Estate of Morrison, 441 NE 2d 68, at 70 (1982).

[12] Section 2(1)(a) of Ontario’s Act requires that not only must the person making the application be an “interested person”, but that all other “interested persons” known to the applicant be given notice of the proceedings. Like the English law from which it originally derives, the Act demands that the missing person be unheard from by family members or other persons likely to have been in contact with him in order for the presumption of death to be invoked. Chard v. Chard, [1955] 3 WLR 954. More than that, it requires in section 2(5)(c) that the applicant make “reasonable inquiries” to ensure that “no other person has heard of or from the individual during the seven year period”.

[13] The onus of “reasonable inquiries” is aimed at preventing the Act’s misuse. As the United States Supreme Court put it, there must be some “adequate safeguards concerning property”, otherwise the declaration will amount “simply to authorizing the transfer of the property of the absentee to others…” Cunnius, supra, at 477. Thus, while the court ought not hold the applicant’s onus under the Act so high as to require that “the party seeking to establish the presumption [of death] be a wealthy mind-reader”, Carriere, supra, at 917, n. 101, it only makes sense that the facts surrounding the person’s disappearance be shown to suggest death and not be susceptible to alternative explanation, Eagle v. Emmet, 4 Brad.117 (NY Surr Ct, 1856).

[14] It is the Applicant’s evidence that Michael was last seen by his family in 1996. At the time he was living in a house in Mississauga, Ontario that he had purchased three years earlier. Until 1993, Michael had lived with his father, together with the Applicant and the Respondents, at their family home in Toronto.

[15] The Applicant states that after Michael moved out of the family home in 1993, she and the Respondents often visited him to give him a hand around the house. The Applicant explained, “as he [Michael] was a bachelor and had never been married, my daughters and I frequently attended at his home to clean up and to make sure his residence was tidy, whether he was there or not.”

[16] This evidence speaks to a warm relationship between the Applicant and Michael. The Respondents corroborate that impression, explaining that they frequently accompanied their mother to Michael’s home in Mississauga in order to “tidy up his home and to bring a ‘woman’s touch’ to his life.” For his part, Michael is said by the Respondents to have “fully assumed the role of a big brother always happy to help, to protect us, and mentor us.”

[17] The Applicant has described her last meeting with Michael at one of her cleaning visits to his house on a Friday in the summer of 1996. She says that when she arrived there that day she could see that Michael appeared to be selling off his possessions. She says that he was cleaning everything out of his house and was preparing to go away somewhere. Her impression was that something was wrong, but Michael would not explain himself.

[18] The Respondents state in their affidavit that two days after this Friday visit to Michael’s house, he came to their home in order to say goodbye to them. They indicate that their mother was not home that particular Sunday; for some reason, they do not say in their affidavit whether Michael’s father was home at the time. They do state, however, that they were very upset with Michael’s news that he was leaving and that they both cried. According to the Respondents, Michael told them that, ‘there is something I have to do’, but he would not explain himself any further.

[19] There has never been a missing persons or police report filed with respect to Michael. He simply vanished without a trace and without causing any stir. As the Respondents describe it:

When we did not see him for weeks and then months we did not call the Police because…we thought perhaps it was just something he had to get away from in terms of creditors although he wouldn’t explain. Perhaps our initial need to believe that everything would be all right, because of our love for him, led us to hope and believe that we would see him and all would be well. With the passage of years and now, so many years with absolutely no word or contact from him, we have all come to the sad conclusion that he is no longer alive.

[20] The Respondents both go on to declare that Michael was “a good man and…not the type of man who would have turned his back on his family.” Likewise, the Applicant states that, “Michael was a very good, gentle and caring young man and we had a loving relationship”, and that “[w]e absolutely would have expected to hear from him if he were alive”. She concludes that, “the only understanding I can have for the complete lack of contact for sixteen years is that he is no longer alive…”

[21] There is, of course, another possibility, which is alluded to in the report of Bob Panczenko, a private investigator that the Applicant hired to try to locate Michael. Mr. Panczenko’s report describes various internet searches of Canadian data sources that he conducted without success. He then indicates that there are 26 people with the same name as Michael Wasylyk with listed telephone numbers in the United States that he has not had the resources to follow up on, but which if pursued could potentially lead to further information. And as a final note of speculation, Mr. Panczenko writes that, “[i]t is also quite possible that Mr. Wasylyk has also moved further south into Mexico, which seems to be the current place of choice to hide from other people in Canada.”

[22] This last observation seems at odds with the family-oriented portrait of Michael painted by the Applicant and the Respondents. It is possible, however, that it fits more comfortably with the statement contained at the beginning of Mr. Panczenko’s report that Michael “is currently not an incarcerated inmate, nor has he been under the Ministry [of Corrections] control, recently.” [emphasis added] According to Mr. Panczenko, the Ministry has no knowledge of Michael’s whereabouts as “[i]t would seem he finished his probation and parole in 1993.”

[23] Mr. Panczenko’s one cryptic sentence about Michael’s apparent criminal background is not fleshed out or further explained anywhere in the record. Neither the Applicant nor the Respondents have disclosed what the nature of Michael’s legal troubles may have been. Mr. Panczenko also comments that during the course of his investigation he came across some inquiries made about Michael by a collection agency back in 2007. Beyond that, however, the record sheds no real light on Michael’s life outside of his relationship with his stepmother and half-sisters.

[24] The Act was enacted by Ontario only a decade ago and there are a small number of reported cases interpreting and applying it. The Ontario cases in which the onus is found to have been met and the missing person is declared to have died for the most part involve persons known by their families to have suffered mental health ailments and to have been suicidal prior to their disappearance. See Re Mezo, 2010 ONSC 4968 (SCJ); Poole v. Poole, 65 CCLI (4th) 283 (SCJ). There are more cases decided under the earlier Absentee Act, SO 1920, c. 36 (now Absentees Act, RSO 1990, c. A.3), which authorizes a court to appoint an administrator for the absentee’s property but not to declare him or her dead for inheritance or other purposes. As with the Act in issue here, cases under the Absentees Act have stressed that there must be a “due and adequate inquiry” regarding the missing person’s whereabouts before any ruling as to their absentee status can be made. Kamboj v. Kamboj Estate, 2007 CanLII 14932, at para. 36 (SCJ).

[25] Of particular concern to me is the admonishment in one early decision by the Court of Appeal that, “[t]he Act is not intended to cover cases in which a man for his own purposes conceals himself.” Re McCarthy, 53 OLR 482, at para. 10 (Ont CA). That statement of policy would seem to apply equally to the Act in consideration here.

[26] One well-known appellate case in the United States makes this point rather dramatically. The Second Circuit Court of Appeals refused to declare dead a New York-based organized crime figure whose family surmised that their husband/father was missing for eight years because, as they put it, he was “rubbed out” by his associates. Mando v. Secretary of Health and Human Services, 737 F.2d 278, at 279 (2d Cir. 1984). The court quoted the finding of the governmental authority from whom the family claimed death benefits to the effect that that it was equally plausible he had become a fugitive from justice “and thus his absence ‘can be reasonably explained without inferring his death, ... notwithstanding its duration.’” Ibid.

[27] One does not have to have a violent background such as the Mando case in mind to similarly imagine alternative explanations. As Middleton J. expressed it in Re McCarthy, supra, at para. 5, “[i]t is just as probable that, tired and disgusted with his domestic situation, he simply sought pastures new.” Indeed, the vary lack of evidence as to what might have happened to a missing person can itself raise doubts about whether any judicial pronouncement is called for. The Ontario court in Kamboj, supra, where the father disappeared after fighting with his second wife but his adult children did little to search for him, commented at para. 36 that, “[g]iven the scarcity of evidence, I am concerned that his disappearance was staged.”

[28] In such circumstances it seems reasonable to ask, at the very least, whether there is any alternative scenario that could “rationally explain the anomaly of the disappearance in a manner consistent with continued life.” Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389, at 398 (9th Cir.1966). While Michael has certainly vanished from his family and his home, the circumstances of his departure in 1996 leave open questions. The Applicant and the Respondents all testify that he was liquidating his assets just prior to his disappearance, and that he told them on his last visit that he was saying goodbye – all of which is more suggestive of flight than death. This immediate “pre-departure evidence may support a finding that the [missing person’s] absence is not unexplained." Johnson v. Califano, 607 F.2d 1178, at 1179 (6th Cir. 1979).

[29] To be sure, I do not think that the Applicant is required under the Act “to negate, by the presentation of evidence, every possibility but that of death.” Meza, supra, at 393. I am of the view, however, that the open questions in the present case were not closed off by the rather rudimentary search done by Mr. Panczenko. In fact, Mr. Panczenko concedes that he did not complete even a basic telephone search in the United States, nor did he do any search at all in Mexico. The former is barely an hour from Michael’s former home, while the latter is explicitly identified by Mr. Panczenko as the place that missing Canadians might typically be found.

[30] Even the search confined to Canada seems to have left obvious gaps. There is evidence that Michael owned his house in Mississauga, but there is no title search to determine whether, when, and to whom it was sold. There is evidence that Michael had a criminal record and that he was on probation and parole, but there is no indication anywhere of what the crime he committed and whether others were involved and whether Michael was in touch with them. There is evidence that a collection agency was looking for Michael years ago, but there is no indication anywhere that the agency was contacted or that any effort was made to determine who his creditors were or whether the debts were paid.

[31] As further evidence of Michael’s presumed death, the Applicant points to the fact that he did not make contact with the family even upon his father’s passing. She deposes that, “[t]he fact of his late father’s death which occurred on November 30, 2009 would most certainly have evoked some response from [Michael] and the fact that there was no contact whatsoever even after that sad event leads me all the more to the sad conclusion I have come to.” That sentiment is understandable, but there is no explanation as to how Michael would have known of his father’s death. The record contains no newspaper obituary, nor does it make reference to any published or widely disseminated notice of Iwan’s passing.

[32] Finally, I note that an important factor in this court’s granting the requested declaration in Poole, supra, at para. 4, was that, “[t]here was a thorough investigation by the police at the time of Mr. Poole’s disappearance… [and] extensive news coverage of the disappearance, including national coverage.” In the present case there was nothing of the kind.

[33] The Applicant and the two Respondents all depose that they decided not to call the police when Michael disappeared because they assumed he was trying to run away from something. Until today, there appears to have been no publication of any kind regarding Michael’s disappearance. A notice in one or two local and/or national newspapers is a standard step taken to locate people in other legal contexts such as bankruptcy, class actions, and estates; one would think that it might be the first step that the Applicant and her investigator would take before seeking a declaration of death.

[34] I am well aware that here, as elsewhere in litigation, “the achievement of the right result needs to be balanced against the expenditure of the time and money needed to achieve that result”. Lord Woolf, Interim Report on Access to Justice (London: June 1995), ch. 4, at para. 6. Proportionality, after all, has been said to lie at the core of legal process. David Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004), at 160, 163. I therefore do not require that the Applicant perform such an elaborate search that the cost would be disproportionate to the value of the one asset that the Application seeks to resolve.

[35] What is required is that some public notification of the search for Michael, and of the nature of the within proceeding, be made. This could take the form of a newspaper notice similar to a creditors’ notice (with appropriate wording changes) in the Legals and Tenders section of one of the national newspapers and, perhaps, the Toronto Star. Some follow-up on the question of title to Michael’s house in Mississauga would also be helpful, as would phone calls to the relatively small number of similarly named persons in the United States. Given the size of the estate, I do not expect the search to extend further afield to Mexico or elsewhere without some specific evidence pointing in that direction.

[36] The Application is dismissed without prejudice to its being re-started at a later time. When the Applicant and her counsel determine that all reasonable further steps have been taken as set out above, she may serve the same Application record along with a new Notice of Return of Application with a new return date, and a supplementary affidavit explaining any new steps taken in the effort to locate Michael Wyslyk.

Morgan J.

Released: December 11, 2012