Court File and Parties

Burkhardt v. Burkhardt Estate, CITATION: 2015 ONSC 2688

COURT FILE NO.: 54856/13

DATE: 2015-04-23

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Irene Emilie Frank Burkhardt

AND: Alex Reuther as trustee of the estate of Walter Heinrich Burkhardt

BEFORE: Mr Justice Ramsay

COUNSEL: Ms Brigitte Gratl for Irene Burkhardt;

Mr Hendrik Keesmat and Mr Andrew Keesmat for Alex Reuther

HEARD: 2015-04-23

ENDORSEMENT

[1] The testator died on June 19, 2013. He made a will disposing of his property in Germany and another will disposing of his property in Ontario. The parties agree that both wills are valid. Irene Burkhardt, the testator’s widow, moves for an extension of time within which to file her election under s.6 of the Family Law Act. She wants to elect to receive the entitlement to equalization of net family property under subsection 5 (2) of the Act. The trustee of the Ontario estate moves for directions and opinion as to how to administer the estate in view of the potential claim for equalization.

[2] The parties were married in Germany, where they lived together until 2003. At that point the testator moved permanently to Ontario to start a vineyard. Frau Burkhardt declined to join him. There is no evidence that she has ever set foot in Ontario. She continued to reside in the matrimonial home in Ellhofen. On March 19, 2012 a German court gave her exclusive possession of the matrimonial home on her ex parte application.

[3] The wills were proven on notice to the widow and with her consent. On December 18, 2013, six months less a day after the death of the testator, she filed the present motion. The trustee was aware of the potential claim, then, within six months of the testator’s death.

[4] Subsection 7 (3) of the Family Law Act provides:

(3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,

(a) two years after the day the marriage is terminated by divorce or judgment of nullity;

(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

(c) six months after the first spouse’s death.

[5] The time can be extended by a judge under subsection 2 (8) of the Act, which provides:

(8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,

(a) there are apparent grounds for relief;

(b) relief is unavailable because of delay that has been incurred in good faith; and

(c) no person will suffer substantial prejudice by reason of the delay.

[6] The brief delay – it is brief if one assumes that the parties did not separate in 2003 – does not give rise to any concern about bad faith or prejudice. There is a question, however, as to whether there are apparent grounds of relief.

[7] The relief for which there must be apparent grounds is not the extension of time. It is, in this case, the application for equalization under subsection 5 (2) of the Act: Scherer v. Scherer (2002), 2002 CanLII 44920 (ON CA), 59 O.R. (3d) 393 (CA).

[8] To my mind, the matter is decided by section 15 of the Act, which provides:

15. The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario.

[9] The last common habitual residence is the place where the spouses most recently lived together as husband and wife and participated together in every day family life: Adam v. Adam, [1994] O.J. No. 1930, leave to appeal refused 1996 CarswellOnt 3523 (CA). On the uncontested evidence before me, that place is Germany. The widow’s rights must be decided under German law.

[10] Irene Burkhardt’s motion is dismissed. On the trustee’s motion, I give the opinion that Irene Burkhardt has no claim under s. 5 of the Family Law Act. I direct that further distribution of the Ontario estate be suspended for 30 days to allow Irene Burkhardt to give notice of any claim under German law.

[11] As discussed with the parties, the trustee is entitled to his actual reasonable legal expenses of these motions from the estate. The widow is entitled to $3,000 in costs from the estate. If I have misunderstood, the parties may make an appointment to settle the order before it is issued and entered.

J.A. Ramsay J.

Date: 2015-04-23