Court File and Parties

Court File No.: CV-25-00741743-00ES Date: 2025-08-15 Ontario Superior Court of Justice

Re: Nicole Lynn Bratusa and Olivia Jade Doersam Bratusa, a minor child, by her litigation guardian Nicole Lynn Bratusa

Applicants

-and-

Ronald Doersam, personally, and in his capacity as the estate trustee of The Estate of Ryan Campbell Doersam and in his capacity as insurance trustee for Ryan Harrison Doersam, Evelyn Lauren Doersam, Georgia Grace Doersam and Thiago Boyd Doersam, Kendra Lauren Dawson personally, and in her capacity as the estate trustee of The Estate of Ryan Campbell Doersam, and The Children's Lawyer for Ontario

Respondents

Before: FL Myers J

Counsel:

• Matthew Rendely and Nicole Cianci, for the Applicants
• Matthew Furrow and Alexandra (Allie) Cuperfain, for the Respondent Kendra Dawson
• Alexander Turner and Samuel Rabinovitch, for the Respondent Ronald Doersam

Heard: August 13, 2025

Endorsement

The Motion

[1] The respondent Kendra Dawson asks me to stay this proceeding on the basis that the Ontario Superior Court lacks jurisdiction to hear it. Alternatively, she seeks to stay the application on the basis that the case is more conveniently dealt with before the courts of the Republic of Costa Rica.

[2] For the reasons set out below, I find that this court does not have jurisdiction to hear this application. I therefore stay the application permanently.

The Facts

[3] The applicants seek dependent's support under the Succession Law Reform Act from the estate of Ryan Doersam.

[4] The applicant Nicole Bratusa and the deceased met in Costa Rica in 2020. They lived together in Costa Rica from 2021 until Ryan Doersam died in September, 2024.

[5] Olivia Bratusa is the child of the deceased and Ms. Bratusa. She was born in Costa Rica in 2021. She lived there with her parents until the death of her father.

[6] The respondent Kendra Dawson is the former spouse of the deceased. Although they separated, they remained married until his death. They initially lived in Ontario. They moved to Costa Rica in 2016 - 2017. They sold their house in Toronto in 2019.

[7] The deceased made his will in 2007 while he and Ms. Dawson were still together and living here. Ms. Dawson is the estate trustee. The will leaves all the deceased's assets to Ms. Dawson.

[8] The deceased also left over $4 million in life insurance. He designated his four children from his marriage to Ms. Dawson as the beneficiaries of the insurance proceeds. The policies are being held in trust for the four children by the deceased's father pursuant to a trust agreement contained in the insurance policy documents.

[9] Although the deceased started to make testamentary plans to support Ms. Bratusa and their child, he did not complete his plans before he passed away. He left them nothing.

[10] The applicants moved to Ontario almost immediately after the death of the deceased. They say that Ms. Dawson has all the deceased's properties in Costa Rica and, despite being the estate trustee, she has impoverished the estate in her own interest.

[11] The applicants claim orders tracing into the proceeds of the life insurance policies or accessing the value of the policies for the purposes of dependent's support claims against the estate of the deceased.

[12] Ms. Bratusa has already brought claims for maintenance for herself and Olivia in Costa Rica. The claims were dismissed because they were brought as family law claims akin to child support and spousal support rather than claims for dependent's support under Costa Rican estates law.

[13] Olivia apparently still can bring a claim against the estate for dependent's support in Costa Rica. The experts agree however, that Ms. Bratusa cannot obtain support from the estate under Costa Rican law. The law in Costa Rica allows a "spouse" to claim dependent's support. But the Costa Rican experts opine that because the deceased and Ms. Dawson remained married at his death, their law will not recognize Ms. Bratusa as the spouse of the deceased for dependent's support purposes.

[14] When Ms. Dawson and the deceased split up, she made family law claims against the deceased in this court. She claimed that Ontario had jurisdiction over the married couple well after they moved to Costa Rica as their lives remained connected to Ontario. She claims the opposite now to try to have this application stayed or dismissed.

[15] Kristjansen J. dismissed Ms. Dawson's family law proceeding for lack of jurisdiction because no one was habitually resident in Ontario.

[16] Kristjansen J. found as a fact that the deceased was a permanent resident of Costa Rica. Ms. Dawson relies on that finding. She also relies on the affidavit filed by the deceased in that proceeding in which the deceased said that he moved to Costa Rica permanently. The affidavit is hearsay. But there is necessity to use it given his death. Moreover, he was cross-examined under oath on the very point for which the affidavit is sought to be used here. Kristjansen J. found his evidence on this point to be credible and she accepted it. I therefore find that there is a principled basis to admit the deceased's affidavit evidence concerning his residency on this motion.

[17] There could be an interesting question of whether Ms. Dawson ought to be heard reversing her evidence about the domicile of the deceased. However, in light of the holding made by Kristjansen J. that the deceased was permanently resident in Costa Rica, Ms. Dawson is likely precluded from challenging the finding by the doctrines of abuse of process and non-mutual issue estoppel in any event.

[18] Ms. Bratusa is not bound by the holding made by Kristjansen J. Ms. Bratusa submits that the parties remained connected to Ontario and always planned to come back here some day.

[19] Apart from bald assertions and a couple of immaterial memberships and licenses maintained by the deceased in Canada, a finding that he was domiciled in Costa Rica is obvious. His affidavit is clear. But so too are the facts concerning the family's move to Costa Rica that led Kristjansen J. to her finding as they lead me to mine.

[20] I know that I am not dealing with the merits today in considering below whether the claims have a real and substantial connection with Ontario. But that does not allow willful blindness of virtually uncontestable facts. The deceased adopted Costa Rica as his domicile of choice. He applied for and became a permanent resident of Costa Rica. While the duration of his stay may have had some indefinite considerations, he never moved or abandoned his domicile of choice in Costa Rica. See: McCallum v. Ryan Estate, 2002 CarswellOnt 1211 at paras. 23 to 25.

[21] The experts also agree that there is no law in Costa Rica like ss. 63 and 72 of the SLRA that allows a court to access the value of assets that are not owned by the estate for the purposes of dependent's support. Thus, if the applicants go to Costa Rica for their claims under Costa Rican law, they will not be able to access the value of the life insurance policies held here for the children of the deceased and Ms. Dawson. Similarly, if Costa Rican law is applied in a proceeding here, the insurance policies and their value will be unavailable to Olivia Bratusa (and Ms. Bratusa will have no claim at all).

Assessing the Court's Jurisdiction

[22] The first step in considering whether this court has jurisdiction to hear this application is to consider whether there are any presumptive connecting factors establishing on a prima facie basis that there is a real and substantial connection between circumstances giving rise to the claim and Ontario. See: Sinclair v. Venezia Turismo, 2025 SCC 27, at para. 47.

[23] In considering whether there is a real and substantial connection, I am also to bear in mind that there is a need for security, stability, and efficiency in the design and implementation of a conflict of laws system. The use of presumptive connecting factors promotes these purposes.

[24] I do not see the fact that the will was made in Ontario in 2007 as a significant fact even if it could be a presumptive connecting factor in some estates cases. See: Rosenblatt v. Peled, 2019 ONSC 5197. This is not a will challenge or a claim involving interpretation of the will.

[25] The only relevancy of the will in this proceeding is the negative fact that it does not provide anything for the applicants. The same issues would arise if the will was signed anywhere else in the world.

[26] The deceased signed his will almost 15 years before he and Ms. Bratusa met. The fact that he signed his will in Ontario a decade before he changed his domicile to Costa Rica has nothing at all to do with whether the estate of the deceased ought to be providing support to Ms. Bratusa and Olivia. I am not satisfied that the place of signing the will is a presumptive connecting factor in this case.

[27] The applicants submit that the estate has assets here so that it needs to be administered here. For example, an RRSP will attract tax consequences that will require the estate trustee's attention. Mr. Rendely likens this to the presumptive connecting factor of "carrying on business" recognized in tort cases. I do not agree. There is law providing that carrying on business requires a fixed business establishment for jurisdiction purposes. The fact that a non-resident estate may pay tax here in relation to specific assets is not analogous to a person or corporation voluntarily establishing a presence here to transact business in Ontario. Payment of tax by a non-resident estate is not a presumptive connecting factor.

[28] But the deceased had some investments here. He also bought life insurance here. It is held in trust by his father who lives in BC. As trustee, the father accepts that the trust is subject to Ontario law. I do not know if the insurance policies are fully paid-up or whether the deceased had ongoing contractual rights or obligations under the terms of the trust. Arguably, as settlor of a trust, he has no interest in the policies. But, if the SLRA applies, no one expressed any doubt that s. 72 would catch the value of the policies for the purposes of dependent's support. Title to the policies may be impacted by an order under s. 63 of the statute as well.

[29] But this is where the issue becomes confusing. There is a circularity in that the only way the existence of the policies here might be a connecting factor is if one decides initially that the SLRA applies or likely applies. If the SLRA does not apply to allow the applicants to bring claims for dependent's support that include accessing the insurance policies, it is hard to see how the existence of the trust could provide jurisdiction for this court to hear a dependent's relief claim under Costa Rican law. That claim cannot reach the insurance policies.

[30] Olivia has no connection to Ontario at all apart from having spent a month here on vacation and living here now. But the current domicile of the plaintiff is not a proper consideration. Without the SLRA applying, she could still bring a claim here for support under Costa Rican law. Ms. Bratusa, by contrast, has some historical connection to Ontario. But without the SLRA, she has no viable claim to support under Costa Rican law.

[31] In Torres v. Ettinger et al., 2022 ONSC 3205, the court relied on the fact that a dependent's relief claim was brought under the SLRA as one basis supporting a finding that this court had jurisdiction. But it was also a fact in that case that the will expressly provided that Ontario law applied. The estate trustee was also located in Ontario.

[32] Mr. Furrow submits that the law of the deceased's domicile applies to his personal property. If the estate does not include the value of the insurance policies and cannot reach title to the insurance policies, that is the result of Costa Rican law. It is not a basis to recognize rights for either applicant under the SLRA he submits.

[33] I agree. The law of the domicile of the deceased applies to the administration of his personal property. This appears to be the case for dependent's support and whatever personal interest the deceased may have retained in the insurance policies in trust. See: McCallum, at para. 21, Pulver, Re, 1982 CarswellOnt 624, (OHCJ) at para. 7, Smallman v. Smallman Estate, 1991 CarswellOnt 531 (OCJ Gen. Div.) at para. 28.

[34] Mr. Rendely was unable to articulate a basis on which Ontario law ought to apply to the applicants' dependent's support applications except to argue that the domicile of the deceased was in Ontario. I have already found that his domicile at the time of his death was in Costa Rica.

[35] But the choice of law does not drive jurisdiction. Both counsel agreed that Ontario could have jurisdiction with the choice of law being left as an issue for the judge who hears the application on its merits. See: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, at para. 111.

[36] Leaving the choice of law aside, I am prepared to assume for the sake of argument that the existence of property here, even personalty, and the existence of an insurance trust here, are presumptive connecting factors for the purposes of establishing a real and substantial connection between the applicants' dependent's support claims and Ontario. See: Li v. Li, 2021 ONCA 669 at para. 38.

[37] The hurdle to prove the existence of a presumptive connecting factor is not high. The factors exist. But are they strong enough to base jurisdiction?

[38] Ms. Dawson bears the burden to rebut the sufficiency of the presumptive connecting factors to base jurisdiction.

[39] The applicants and the deceased met and lived in Costa Rica. Their lives were wholly centred in Costa Rica but for brief vacation time here. Prior to commencing this application, Ms. Bratusa brought her support claims in Costa Rica on the basis that she and Olivia intended to return there. Even after commencing this claim, Ms. Bratusa sought to engage the jurisdiction of the Costa Rican court by stating a new intention that she and the child may live in both jurisdictions.

[40] The fact that the applicants now say that they will also live here is not an important issue as jurisdiction hinges on the connection of the dispute and the respondents to Ontario. The fact that the applicants continue to recognize and assert a connection to Costa Rica, to allow them to continue to bring claims against the estate there, is consistent with the situs of the estate and the dispute being and remaining in Costa Rica.

[41] The existence of personal property here alone is not a strong basis to find a real and substantial connection between Ontario and a claim that the applicants are entitled to dependent's support from the Costa Rican estate. The existence and ranking of claims in an estate among creditors, beneficiaries, and potential dependents is not affected by whether some assets are in Ontario, some are in United States, and some could be in any number of other countries. The issue is who has rights to receive the estate's assets once they are collected. In the applicants' case, the issues will turn on the classification of their respective relationships with the deceased and proof of the degree of their financial dependency upon him. The issues are not affected by the location of any assets.

[42] The fact that some of the assets here may be beyond the reach of the estate is a choice of Costa Rican law if it applies. It is not relevant to whether either of the applicants have a claim to support and, if they do, for how much.

[43] I accept Mr. Rendely's submission that the insurance trust is analogous to a contract for jurisdiction purposes. When considering the strength of a contract as a presumptive connecting factor, at para. 134 of Sinclair, Côté J. held that, "the rebuttal analysis assesses the strength of the contract's connection with the forum, the subject matter of the dispute, and the defendants challenging jurisdiction."

[44] The existence of trust agreements relating to the insurance proceeds here is also not a strong connection between the claim for dependent's support and Ontario. In Sinclair, Côté J. wrote:

[69] The connection between the contract and the subject matter of the dispute will similarly depend on the specific terms of the contract. Where the dispute flows directly from the obligations set out in the contract, as in Van Breda, the relationship between the contract and the dispute will be strong. By contrast, if the contract is connected with the dispute only remotely through a chain of contracts formed in other jurisdictions, or if the contract does not instruct or govern the defendant in a capacity relevant to the dispute, the contract may be said to bear a weaker relationship with the dispute.

[45] The insurance proceeds are held in trust and the trustee may well be subject to Ontario law as between himself, the insurer, the settlor, and the policy payees. But I do not see how the regulatory terms surrounding the holding of a piece of personal property in Ontario can be of any greater consequence than the simple existence of a piece of personal property here. I am not speaking about land that may have different considerations. Whether personal property here is cash in a bank, a car, shares on a stock exchange held by a broker, or insurance proceeds in trust, does not provide any relevant connection between the issues of whether the spouse and child of the deceased should be entitled to support from his estate. To borrow the words used by Côté J., the trust "does not instruct or govern the defendant in a capacity relevant to the dispute."

[46] Much like the contract between the injured party and his credit card company in Sinclair, although a contract may exist, it is not relevant to the nature of the connection between the claims and Ontario.

[47] Mr. Furrow submits that the strength of these connections is too weak to allow the court to take jurisdiction. The opposite would essentially mean that this court will assume jurisdiction over a dependent's support claim any time a foreign deceased has any personalty in Ontario.

[48] I agree. Like the credit card contract in Sinclair, it "would not be in keeping with the spirit of order and fairness that animated LeBel J. in Van Breda" to recognize the existence of personal property here or contracts concerning the manner of holding personal property here alone as bases to allow potential dependents to bring claims in Ontario for dependent's support against a foreign estate.

[49] I find that the respondents have successfully rebutted the presumptive connecting factors and therefore find that this court has no jurisdiction to hear this proceeding.

[50] This application is therefore stayed.

Ontario is not Forum non Conveniens

[51] In view of my holding that the court lacks jurisdiction to hear this application, there is no need to consider Ms. Dawson's alternative argument that Ontario is not the convenient forum to hear it. It seems to me however, that I should make necessary findings in case the stay is lifted or quashed.

[52] It would seem to be more convenient for Ms. Bratusa to sue here while she lives here. She has financial issues that she says are caused by Ms. Dawson refusing to collect the assets of the estate that could then be accessed to support at least Olivia.

[53] But Ms. Bratusa has a long list of expenses and costs set out in her affidavit that she says were paid by the deceased. All the evidence of those costs of living are likely in Costa Rica and in Spanish. All this evidence would need to be formally translated to be adduced in evidence here.

[54] Ms. Bratusa has already said that she left out of her record for this motion some documents from her Costa Rican court proceedings because she cannot afford the costs of translating.

[55] Given her new-found intention to live both in Canada and Costa Rica with Olivia, it may well be the case that bringing proceedings there will be less costly and more convenient for Ms. Bratusa at least when she lives there.

[56] Fact witnesses for the issues for dependent's support would appear to be in Costa Rica. With the prevalence of videoconferencing in court proceedings, this is not a major factor.

[57] In all, I am not really able to tell whether there are significant cost and convenience factors favouring one forum over the other. The analysis may change markedly depending on where the applicants live at any given time.

[58] There is an obvious juridical advantage to the applicants if the proceeding is determined under the SLRA. But the Supreme Court of Canada warns in Van Breda that in considering any juridical advantages the choice of law should not be assumed to be the law of the venue. The juridical advantages to be assessed in this analysis deal with procedural issues rather than the substantive law.

[59] I am not aware of any particular procedural advantages to the applicants of suing here rather than in Costa Rica.

[60] There is an issue about multiplicity. The applicants are suing here and in Costa Rica. They say however that unless Ms. Dawson funds the estate, there is little point in suing there. They need to try to capture the value of assets here in order to recover in all likelihood.

[61] Even if the two courts make different determinations of the choice of law, the outcome is not necessarily inconsistent. If a court in Costa Rica applies Costa Rican law, then the estate does not reach the insurance policies. Were this court to then hold that Ontario law does reach the insurance policies, the issue would really be between the policy beneficiaries and the applicants rather than the estate.

[62] Of course, the opposite result could happen – with the Costa Rican court applying Ontario law and the Ontario court applying Costa Rican law. That outcome could well be messy with the estate trustee trying to take the policies and with her entitlement to do so not being recognized by the Ontario court. This is far-fetched however and I have never heard of it happening.

[63] The bottom line is that multiplicity is not a major issue here in that there is little likelihood of decisions that conflict and interfere with the outcome on any practical basis.

[64] In all, other than costs that turn on the applicants' place of residence, there is little basis to see Costa Rica as a materially more convenient forum if this court were to have jurisdiction in the matter.

[65] Ms. Dawson is said to have over $10 million in properties of the deceased in Costa Rica. Mr. Furrow did not suggest that there is a meaningful hinderance to her or the estate participating fully in a case brought here.

[66] The burden to establish that Costa Rica is a materially more fair or convenient forum is on Ms. Dawson. If the court had jurisdiction to hear this proceeding, I would hold that she has not met the burden to prove that Ontario is forum non conveniens.

Preservation of Insurance

[67] On May 20, 2025, I ordered the insurance trustee to preserve the insurance policies and proceeds pending the outcome of this proceeding or agreement between the parties.

[68] Subject to the possibility of an appeal, there is no reason for the interim preservation order to continue. The appeal period is thirty (30) days. If so minded, the Court of Appeal could grant its own stay or continue this stay.

[69] I therefore order that the interim stay ordered May 20, 2025 will expire at 4:00 pm EDT on September 19, 2025 unless continued by another court order prior to that time.

Costs

[70] Ms. Dawson may deliver costs submissions by August 29, 2025. The applicants may deliver responding submissions by September 12, 2025. Submissions shall be no longer than 1,000 words. Pages are to be double-spaced with standard margins. Text is to be font size 12 or higher. Each party shall submit a Costs Outline. They may also deliver copies of any offers to settle that they submit are relevant to costs.

FL Myers J

Date: August 15, 2025

Footnote

[1] There is also an application form ostensibly sent to the deceased by an investment provider recently. The information in the form seems to have been inserted by the provider from its records. The information is outdated. This is not evidence that the applicant remained living in Toronto at a time when all the parties agree that he moved to Costa Rica in 2017 and he and Ms. Dawson sold their house in Toronto in 2019.