Endorsement
Court File No.: CV-22-670-00ES
Date: 2025-02-20
Superior Court of Justice – Ontario
Re: Aleksandr Bolotenko (Applicant)
And: The Estate of Thomas Lloyd Wright and Cynthia Wright (Respondents)
Before: H. Leibovich
Counsel: Michael Bolotenko, for the Applicant
The Estate of Thomas Lloyd Wright and Cynthia Wright (not present)
Heard: February 20, 2025
Background
The Deceased died on April 27, 2022. The Deceased executed and signed his Last Will and Testament on March 8, 1999. Almost four years to the date, on February 13, 2003, he married Ms. Yaite Reyes Cruz, in Cuba. Their marriage lasted seven months. The Deceased did not state in his will that it was made in contemplation of his marriage to Ms. Cruz or any person.
Section 15(a) and section 16 of the Succession Law Reform Act, RSO 1990 used to read:
(15) A will or part of a will is revoked only by,
(a) marriage, subject to section 16;Revocation by marriage
(16) A will is revoked by the marriage of the testator except where,
(a) there is a declaration in the will that it is made in contemplation of the marriage;…
Legislative Change and Issue
- Bill 245 repealed s. 15 and s. 16 on January 1, 2022. The Estate Trustee has brought a motion for direction asking whether Bill 245 applies retroactively. He submits that it does not, that the will was revoked and that the deceased died intestate.
Analysis
I agree. I start with the basic principle that there is a presumption against the retroactive application of new legislation. As stated by the Supreme Court of Canada in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 at paras. 48 and 49:
The presumption is a tool for discerning the intended temporal scope of legislation. In the absence of an indication that Parliament has considered retrospectivity and the potential for it to have unfair effects, the presumption must be that Parliament did not intend them:
The absence of a general requirement of legislative prospectivity exists despite the fact that retrospective and retroactive legislation can overturn settled expectations and is sometimes perceived as unjust: see E. Edinger, “Retrospectivity in Law” (1995), 29 U.B.C. L. Rev. 5, at p. 13. Those who perceive it as such can perhaps take comfort in the rules of statutory interpretation that require the legislature to indicate clearly any desired retroactive or retrospective effects. Such rules ensure that the legislature has turned its mind to such effects and “determined that the benefits of retroactivity (or retrospectivity) outweigh the potential for disruption or unfairness”: Landgraf v. USI Film Products, 511 U.S. 244 (1994), at p. 268. [Emphasis added.]
(Imperial Tobacco, at para. 71, per Major J.)
The presumption exists to ensure that laws will only apply retrospectively where Parliament has clearly signaled that it has weighed the benefits of retrospectivity with its potential unfairness. Otherwise, we presume that Parliament did not intend such effects.
The presumption can be rebutted by a statute’s express provision or by necessary implication. Neither exists in this case. There is no express provision in either Bill 245 or the Succession Law Reform Act which states that retroactive application to subsection 15(a) and section 16 is to apply. In addition, there is no clear intention in the Hansard Debates that the repeal would apply retroactively. Bill 245 received royal assent on April 19, 2021. Before then, Bill 245 passed through a first, a second, and a third reading. Several debates within and between each reading were had. There appears to be no direct reference as to whether or not subsection 15(a) and section 16 would be applied retroactively. At best, the only reference seems to connote the opposite; that it would apply prospectively as it stated “[w]ith changes in Bill 245, it will now be an intentional choice when and how one changes their will upon entering a marriage. [emphasis added]”
I agree with the applicant that as of January 1, 2022, the revocation upon marriage clause no longer applies. However, any marriage that happened before then would still act to revoke any will the testator had previously made before marrying.
Case Law
I agree with the reasoning of the court in Vance (Re), 2021 SKQB 320 that dealt with a similar issue. The court noted the issue at para. 21:
Here, I am asked to turn back time and revive a will (or declare it valid) long after it has been deemed revoked, thereby changing the past legal effect of a past situation. As I said, that would give the amendments of the Act retroactive application. The legislature did not enact an express provision relating to the retroactive application of the repeal of s. 17…
The court concluded that the presumption against the retroactive operation of the repeal of the section at issue had not been rebutted by express provision or necessary implication. The court noted at paras. 26-28 the mischief that could result:
It is necessary to consider the effect or consequences of determining the amendment to be retroactive. The nagging question I am drawn to is whether reviving old wills written prior to marriage (or 24-month cohabitation) would be unfair or create mischief? While keeping in mind the goal of the legislation is to restore the wishes and intentions of the testator, it is important to be mindful of the potential implications for those who wrote wills a long time ago or at a young age before they became spouses or had children.
To rule in favour of retroactivity, would result in the revival of all wills previously deemed revoked by s. 17, regardless of when they were made. There will be many persons who, like the deceased here, prepared a will long ago, before marriage or entering into a spousal relationship, without any contemplation of a change in that status at the time the Will was made.
For those testators who created Wills long ago, and who subsequently became a spouse, they may have been content to rely on the statutorily-imposed revocation and the consequent intestacy rules for the future distribution of their estate. Their dependents would not have been required to make separate applications under other legislation in order to obtain relief from the estate.
I also note that while the issue was not squarely raised before it, the court in Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315 operated under the legal (correct, in my view) assumption that the repeal did not operate retroactively.
Conclusion
- The Deceased married Ms. Cruz on February 13, 2003, and, by operation of s. 16 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, as it read on that date, the will was revoked by that marriage. The deceased never executed another will. He died intestate.
Justice H. Leibovich
Released: February 20, 2025