In Burkhardt v. Burkhardt Estate, 2015, the Ontario Superior Court addressed the issue of common habitual residence to determine the wife’s entitlement to her husband’s estate, and in doing so, highlighted the interplay of Family and Estates law in Ontario.

The testator, Walter Burkhardt was an entrepreneur who left Germany for Ontario to start a winemaking business. His wife, Irene Burkhardt, refused to join him and continued to reside in Germany. Despite Irene’s refusal to move to Ontario with Walter, it appears that the couple continued to view themselves as being married, and “separation” in the Family Law sense, was not their intention.

Walter executed two Wills—one dealing with his property in Germany and the other for his property in Ontario. After Walter’s death, Irene elected under subsection 5(2) of the Family Law Act for equalization.

To determine whether Irene could do so, the Court cited section 15 of the Family Law Act, which provides that “[t]he 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.” In interpreting this provision, the court confirmed the findings of prior cases, which ultimately found that “last common habitual residence” refers to the place where the spouses most recently lived as husband and wife and where they, together, last participated in every day family life.

With respect to Walter and Irene, the Court determined that this place was Germany, and as a result, Irene’s rights to Walter’s estate were to be decided under German law rather than Ontario law.

In an age where it is more and more common for married individuals to pursue careers abroad, be aware of the possible implication of losing the right to equalization to the deceased spouse’s property under the Ontario regime. International couples like Walter and Irene should be mindful of this prior to settling on living arrangements that could have an unintended (or intended) affect.

Until next time,

Jasmine Sweatman