Appointment of Committee for Non-Resident Absentee
1. Introduction
Applications for the appointment of a committee of an absentee are not an everyday occurrence, but they are made with fair regularity. People disappear for various reasons. A person may perhaps have suffered an accident but the body is never found. Or the person may have intentionally staged a disappearance and cannot be found. Grover v Vaid,[1] is an interesting case. It concerned a woman who chose to return to India, her domicile of origin and to remain there. She could not be found afterwards.
2. Facts
Ms. Vaid immigrated to Canada from India in 2013 and bought a house with her husband, Mr. Grover, in 2016. They took title as joint tenants. In 2017 the two returned to India, their native country, to visit relatives, and two days after their arrival she decided not to return to Canada. Mr. Grover did return. He saw her last at the home of her parents in India. The parties were divorced in 2019 and Mr. Grover remarried. Since then he asked her to sign the necessary documents to refinance the mortgage on the house, but she failed to respond, and he was unable to reach her, despite many attempts. In 2023 he brought an application under the Absentees Act[2] for a declaration that he was the sole owner of the house.
3. Analysis and Judgment
The court rightly concluded that the applicant was not entitled to that remedy, since the Act only permits the court to appoint an absentee. Besides, there was no evidence that Ms. Vaid had died, and therefore the applicant could not claim entitlement by right of survivorship. However, he could be named a committee of Ms. Vaid’s joint interest in the house.
The court noted that the legislation was enacted originally in 1920[3] in order, as mentioned by the court, to deal with the death of a wealthy Toronto man who disappeared without any evidence that raised a suggestion of his death.[4]
Section 1 of the Act defines ‘absentee’ as 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’.
Section 2(1) empowers the court to declare a person to be an absentee ‘if it is shown that due and satisfactory inquiry has been made’. But the court may direct the applicant to make further inquiries.
Section 8 deals with the issue of land in Ontario that belongs to a foreign absentee. This section was relevant since Ms. Vaid was now domiciled in India. It provides:
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.
The court concluded that it was impractical in the circumstances for the applicant to go to India and spend potentially a lot of time looking for Ms. Vaid. It also concluded that Ms. Vaid’s decision to live indefinitely and incognito in India satisfied the absentee requirements of the Act. The difficulty in this case was that under the common law rules of conflict of laws and section 8 a person such as Ms. Vaid should be declared an absentee in accordance with the laws of India. Thus, the applicant might have had to obtain such a declaration of an Indian court. Alternatively, he could prove Indian law in the Ontario court.
However, in the absence of proof of the law of a foreign jurisdiction, the domestic court is entitled to assume that the law of the foreign jurisdiction is the same as the law of Ontario. Accordingly, the court was entitled to exercise the jurisdiction under section 8 in accordance with the requirements of section 2(1). In light of the applicant’s attempts so serve the divorce application on Ms. Vaid through the usual channels, the court was satisfied that the applicant had made due and satisfactory inquiry into the whereabouts of Ms. Vaid. The court then concluded, by reference to the provisions of section 8, that the absentee order served the best interests of the absentee and those of her family. However, as the court noted, the power to declare Ms. Vaid an absentee is limited to her interest in the Ontario property.
The effect of the absentee order was that the applicant could deal with the property as joint owner and as committee. Thus, he was at liberty to sell and convert the property and use the proceeds to purchase another house. Of course, if the absentee should return to Ontario and obtain an order declaring her no longer to be an absentee, she could require the applicant to account. However, her claim would be subject to the equities, the legal requirements associated with net family property under the Family Law Act,[5] and limitation of actions.
Accordingly, the court declared Ms Vaid an absentee under section 8 of the Act and appointed the applicant as the committee of her interest in the property with power to manage, encumber, sell, or otherwise deal with it.
—
[1] 2023 ONSC 5931.
[2] RSO 1990, c A.3.
[3] Absentee Act, SO 1920, c 36. The name was pluralized in the 1980 statute revision: Absentees Act, RSO 1980, c 3.
[4] See Re Taylor (1925), 27 OWN 497. The case is referred to in Kamboj v Kamboj Estate, 2007 CarswellOnt 2785.
[5] RSO 1990, c F.3.
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Written by: Albert Oosterhoff
Posted on: February 2, 2024
Categories: Commentary, WEL Newsletter
1. Introduction
Applications for the appointment of a committee of an absentee are not an everyday occurrence, but they are made with fair regularity. People disappear for various reasons. A person may perhaps have suffered an accident but the body is never found. Or the person may have intentionally staged a disappearance and cannot be found. Grover v Vaid,[1] is an interesting case. It concerned a woman who chose to return to India, her domicile of origin and to remain there. She could not be found afterwards.
2. Facts
Ms. Vaid immigrated to Canada from India in 2013 and bought a house with her husband, Mr. Grover, in 2016. They took title as joint tenants. In 2017 the two returned to India, their native country, to visit relatives, and two days after their arrival she decided not to return to Canada. Mr. Grover did return. He saw her last at the home of her parents in India. The parties were divorced in 2019 and Mr. Grover remarried. Since then he asked her to sign the necessary documents to refinance the mortgage on the house, but she failed to respond, and he was unable to reach her, despite many attempts. In 2023 he brought an application under the Absentees Act[2] for a declaration that he was the sole owner of the house.
3. Analysis and Judgment
The court rightly concluded that the applicant was not entitled to that remedy, since the Act only permits the court to appoint an absentee. Besides, there was no evidence that Ms. Vaid had died, and therefore the applicant could not claim entitlement by right of survivorship. However, he could be named a committee of Ms. Vaid’s joint interest in the house.
The court noted that the legislation was enacted originally in 1920[3] in order, as mentioned by the court, to deal with the death of a wealthy Toronto man who disappeared without any evidence that raised a suggestion of his death.[4]
Section 1 of the Act defines ‘absentee’ as 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’.
Section 2(1) empowers the court to declare a person to be an absentee ‘if it is shown that due and satisfactory inquiry has been made’. But the court may direct the applicant to make further inquiries.
Section 8 deals with the issue of land in Ontario that belongs to a foreign absentee. This section was relevant since Ms. Vaid was now domiciled in India. It provides:
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.
The court concluded that it was impractical in the circumstances for the applicant to go to India and spend potentially a lot of time looking for Ms. Vaid. It also concluded that Ms. Vaid’s decision to live indefinitely and incognito in India satisfied the absentee requirements of the Act. The difficulty in this case was that under the common law rules of conflict of laws and section 8 a person such as Ms. Vaid should be declared an absentee in accordance with the laws of India. Thus, the applicant might have had to obtain such a declaration of an Indian court. Alternatively, he could prove Indian law in the Ontario court.
However, in the absence of proof of the law of a foreign jurisdiction, the domestic court is entitled to assume that the law of the foreign jurisdiction is the same as the law of Ontario. Accordingly, the court was entitled to exercise the jurisdiction under section 8 in accordance with the requirements of section 2(1). In light of the applicant’s attempts so serve the divorce application on Ms. Vaid through the usual channels, the court was satisfied that the applicant had made due and satisfactory inquiry into the whereabouts of Ms. Vaid. The court then concluded, by reference to the provisions of section 8, that the absentee order served the best interests of the absentee and those of her family. However, as the court noted, the power to declare Ms. Vaid an absentee is limited to her interest in the Ontario property.
The effect of the absentee order was that the applicant could deal with the property as joint owner and as committee. Thus, he was at liberty to sell and convert the property and use the proceeds to purchase another house. Of course, if the absentee should return to Ontario and obtain an order declaring her no longer to be an absentee, she could require the applicant to account. However, her claim would be subject to the equities, the legal requirements associated with net family property under the Family Law Act,[5] and limitation of actions.
Accordingly, the court declared Ms Vaid an absentee under section 8 of the Act and appointed the applicant as the committee of her interest in the property with power to manage, encumber, sell, or otherwise deal with it.
—
[1] 2023 ONSC 5931.
[2] RSO 1990, c A.3.
[3] Absentee Act, SO 1920, c 36. The name was pluralized in the 1980 statute revision: Absentees Act, RSO 1980, c 3.
[4] See Re Taylor (1925), 27 OWN 497. The case is referred to in Kamboj v Kamboj Estate, 2007 CarswellOnt 2785.
[5] RSO 1990, c F.3.
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