“On October 1, 2017, the applicant and his then wife returned to their native country, India, to visit relatives. Two days later, the wife, the respondent Onam Vaid, decided not to return to Canada. The applicant did return. In 2019, they were divorced. The applicant is now remarried and has a young child. For years, the respondent has failed or refused to answer the applicant’s attempts to reach her, to refinance the mortgage on the home they bought as joint tenants. The absence of the respondent’s co-signature on real estate financing documents has caused the applicant untold misery, not to mention economic strain on his new family.
Citing the Absentees Act, R.S.O. 1990, c. A.3, the applicant requested a declaration that he is the sole owner. In order for a joint tenancy to devolve into sole ownership, one of the owners must die or be deemed to have died. Absenteeism is not the same as de jure death, pursuant to the Declarations of Death Act, 2002, S.O. 2002, c 14, Sch. There is no need to embark on that legal analysis, because there is no evidence before the court that the respondent has died or has even been suspected to have died. The evidentiary requirements leading to a declaration of death are quite onerous, and the respondent’s decision to disappear into the Indian populace is not the same as someone missing and suspected of an untimely demise. Survivorship leading to sole ownership is therefore not a remedy available to the applicant. I will, instead, declare the respondent an absentee. The remedy under the Absentees Act is to appoint the applicant the committee of the absentee’s joint interest in the property. I will first introduce the legislation, and then I will deal with the two substantive issues the court must consider to declare the respondent an absentee.
Most of the jurisprudence regarding the legal status of absentees arises from the courts’ reluctance to declare people dead under common-law principles. The fear is that people who are alive can return from legal death, to cause havoc to innocent parties who have organized their affairs based on the declaration. See Wasylyk v. Wasylyk, 2012 ONSC 7029, [2012] O.J. No. 5884 (S.C.J.), para. 8. Absenteeism is a statutory invention of a status betwixt the quick and the living. Under s. 2, any person is entitled to bring the application for the order under the Act.
In 1920, the Ontario legislature enacted the original Absentee Act in 1920 to deal with a Toronto man of considerable wealth who disappeared without any evidence to suspect his death: Re Taylor (1925), O.W.N. 497, cited in Kamboj v. Kamboj Estate, 2007 CanLII 14932, [2007] O.J. No. 1732, at para. 8. The legislative purpose, consistent with a reading of this short statute in its entirety, is not the creation of a third class of vital statistic other than birth and death. Nor is it to create some kind of transfer of property interests to joint tenants or to escheat property of missing persons to the Crown. Rather, the purpose of the statute is to allow stakeholders in the missing person’s property to control, manage and dispose of it.”