Pavicevic v. Iannarelli
The trial judge correctly applied the presumption of death and the statutory test in s.2(4) of the Declarations of Death Act, finding sufficient evidence that the missing person had been unaccounted for for more than seven years and declaring death as of January 10, 1997; because the parties held title as joint...
Source-derived case information.
- Citation
- 2008 ONCA 865
- Parties
- Appellant: Jasminka Pavicevic; Appellant: Jeromy Predrag Pavicevic; Respondent: Betty Iannarelli
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 23 December 2008
- Procedural Posture
- Civil Appeal / Decision on Appeal by Court of Appeal for Ontario (judgment)
- Outcome
- Appeal dismissed; trial judge's declaration of death and orders upheld
- Legal Topics
- Presumption of Death, Declarations of Death Act S.2(4), Joint Tenancy and Survivorship, Constructive Trust, Adjournment, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jasminka Pavicevic
Appellant
Jeromy Predrag Pavicevic
Appellant
Betty Iannarelli
Respondent
Procedural Posture
Civil Appeal / Decision on Appeal by Court of Appeal for Ontario (judgment)
Legal Issues
- 1 Whether presumption of death applies after seven years of unexplained absence
- 2 Whether criteria of s.2(4) of the Declarations of Death Act were met to declare death as of January 10, 1997
- 3 Whether title held in joint tenancy passed on presumed death notwithstanding later registration of a spousal support order
Ratio Decidendi
The trial judge correctly applied the presumption of death and the statutory test in s.2(4) of the Declarations of Death Act, finding sufficient evidence that the missing person had been unaccounted for for more than seven years and declaring death as of January 10, 1997; because the parties held title as joint tenants, title vested automatically in the surviving joint tenant on that date and was not defeated by the later registration of the spousal support order, and there was no basis for appellate intervention on the adjournment or constructive trust findings.
Court Disposition
Appeal dismissed; trial judge's declaration of death and orders upheld
Orders
- Appeal dismissed
- Declaration of death affirmed as at January 10, 1997
Full Case Text
Judgment text and source record
1 paragraphs
Pavicevic v. Iannarelli Collection Decisions of the Court of Appeal Date 2008-12-23 Neutral citation 2008 ONCA 865 Docket numbers C47421 Judges Laskin, John Ivan; Gillese, Eileen E.; Blair, Robert Ashley Subject Civil Decision Content CITATION: Pavicevic v. Iannarelli, 2008 ONCA 865 DATE: 20081219 DOCKET: C47421 COURT OF APPEAL FOR ONTARIO Laskin, Gillese and Blair JJ.A. BETWEEN: Jasminka Pavicevic and Jeromy Predrag Pavicevic Appellants (Respondents) and Betty Iannarelli Respondent (Applicant) Shan Padda for the appellants John Lo Faso for the respondent Heard: December 18, 2008 On appeal from the order of Justice Wailan Low of the Superior Court of Justice dated June 14, 2007. APPEAL BOOK ENDORSEMENT [1] We find no error in the reasons of the trial judge. There is a presumption of death where a person has been missing and unaccounted for for more than seven years, which was the case here: see Sherman v. National Life Assurance Co. of Canada [1996], 130 D.L.R. (4th) 752 at para. 16, aff’d [1996] O.J. No. 1692 (Q.L.) ( Div. Ct.). [2] There was ample evidence to support the trial judge’s finding that Ms. Iannarelli had met the criteria set out in s. 2(4) of the Declarations of Death Act 2002 S.O. c. 14 and to support her declaration of death as at January 10, 1997. Since title to the property was held by Mr. Pavicevic and Ms. Iannarelli as joint tenants, and the appellant’s spousal support order was not registered on title until 2005, that declaration is the end of the matter. Whether there was a constructive trust or not – and we do not interfere with the trial judge’s finding in that regard – title passed to Ms. Iannarelli automatically on the presumed death of Mr. Pavicevic on January 10, 1997. [3] We see no basis for interfering with the trial judge’s decision not to adjourn the trial in the circumstances. [4] Accordingly, the appeal is dismissed. [5] Costs of the appeal to the respondent fixed at $5,000 all inclusive. Approval of the order by the appellants dispensed with.