Several times a year in my practice there is a family dispute over the disposal of a deceased person's body. These disputes often end up before our Courts with the family asking a Judge to make a decision in order to resolve the dispute. The disputes can be anything from determining who has authority over the body, to how the body is disposed of, who has custody of the remains, the burial, authority to bury, the funeral, interment, disinterment, requests for DNA testing of remains, funeral homes seeking or compelling burial orders, religious considerations and so on. Accordingly, developments in this area are important to many as are the basic legal principles upon which a Court has jurisdiction to make a decision.
In summary, it is the Estate Trustee (note: Executor, Estate Trustee, Administrator, and Personal Representative are all interchangeable terms used to reference the person who has been appointed by the Last Will and Testament, or the Court as the person, or entity responsible for administering the Estate of the Deceased), who determines the disposition of a Deceased's body. The basic principles of our law as it exists in Ontario can be summarized as follows:
- The Estate Trustee of the Deceased's Estate has the right of possession of the body for the purpose of disposing of it. If there is no appointed Estate Trustee, the person(s) entitled to apply to be the Estate Trustee, has the right to possession of the body for burial purposes. Section 29 of the Estates Act, R.S.O. 1990, c. E.21, enumerates who is entitled to become the Deceased's Estate Trustee, where there is no appointment.
- The Estate Trustee is duty bound to dispose of a body in a "dignified manner." Both burial and cremation are sanctioned methods of disposal. The wishes of the Deceased concerning disposal are not binding on the Estate Trustee. As well, the Estate Trustee must not act capriciously.
- An Estate Trustee must dispose of the body in a manner befitting of the Deceased's station in life.
- The Estate Trustee has a strict duty to provide the particulars of the Deceased's burial to the next-of-kin.
- Exceptions to the Estate Trustee's right of possession of the body include:
(a) where the Deceased consented to post-mortem donations;
(b) where a warrant has been issued by the coroner; or
(c) where disinterment has been ordered.
The duty to bury a corpse lies with the Deceased's Estate Trustee. This duty is protected by our criminal code. Section 182 states:
182. Everyone who
(a) neglects, without lawful excuse, to perform any duty that is imposed on him by law or that he undertakes with reference to the burial of a dead human body or human remains, or
(b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Since there can be no 'property' in a human corpse, how does the Estate Trustee become responsible for disposing of the remains of the Deceased? To learn the answer to this question and more about who decides how remains will be disposed of; whether the wishes, or the religion of the Deceased play a role in the disposal of remains; whether there is property in a human corpse, or in its body parts, or in its DNA, please access the following link to a paper written by me, entitled: "The Body, Ashes and Exhumation - Who Has The Last Word?"
Recent Legal Developments Concerning Burial Issues and Interment Rights:
In Ontario, the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c.33 with written sections proclaimed not to come into force and effect until July 1, 2012, and applicable sections in effect already, is a law that was approved by the Ontario Legislature on December 13, 2002. This Act consolidates and updates two existing pieces of legislation, the Funeral Directors and Establishment Act, RSO 1990, F.36 and the Cemeteries Act (Revised) R.S.O. 1990, Chapter C.4.
In Ontario, the Estate Trustee's right of possession of the Deceased's body remains and continues after burial. It is important to know that the rights of an interment right's holder override the Estate Trustee's right to possession of the Deceased's body. The relevant provisions in the legislation applicable to the interment right's holder, can be found in the Funeral Burial Cremation Services Act, 2002, with relevant sections, in effect currently.
Disinterment must occur in accordance with each Province's applicable legislation. In Ontario, the Cemeteries Act (Revised) R.S.O. 1990, provides for the requirements of a disinterment, and the interment rights holder as follows:
Subject to subsection (2) no person shall disinter any human remains without, (a) the prior consent of the interment right's holder; and (b) notifying the proper medical officer of health for Ontario.
Section 161. (1) reads as follows:
Interment and scattering:
161. (1) No cemetery operator shall inter human remains in a lot, other than the remains of the interment rights holder, without the written consent of the interment rights holder. O. Reg. 30/11, s. 161 (1).
(2) No cemetery operator shall scatter cremated human remains in a scattering ground, other than the remains of the scattering rights holder, without the written consent of the scattering rights holder. O. Reg. 30/11, s. 161 (2).
(3) No cemetery operator shall,
(a) sell or provide interment or scattering rights for a limited term, or offer to do so;
(b) inter or permit the interment of humans remains for a limited term, or offer to do so; or
(c) scatter or permit the scattering of cremated human remains for a limited term, or offer to do so. O. Reg. 30/11, s. 161 (3).
(4) A burial permit under the Vital Statistics Act is not required for the interment of products of conception that do not constitute a still-birth under that Act and for which no burial permit under that Act is therefore required to be issued. O. Reg. 30/11, s. 161 (4).
Disinterment and removal of human remains
162. (1) No person shall disinter human remains except in accordance with the Act and one of the following: this section, section 178 or 179 or a site disposition agreement mentioned in section 184. O. Reg. 30/11, s. 162 (1).
(2) No person shall remove scattered cremated remains from a scattering ground except in accordance with this section. O. Reg. 30/11, s. 162 (2).
(3) No person shall disinter any human remains unless,
(a) the prior consent of the interment rights holder has been obtained; and
(b) except if the remains are cremated human remains, prior notification has been given to the medical officer of health. O. Reg. 30/11, s. 162 (3).
(4) No person shall remove scattered remains without the prior consent of the scattering rights holder. O. Reg. 30/11, s. 162 (4).
(5) Subsections (3) and (4) do not apply to a disinterment or removal that is,
(a) made pursuant to a direction under section 102.1 of the Act; or
(b) ordered by the registrar under subsection 88 (7) of the Act pursuant to a cemetery closure. O. Reg. 30/11, s. 162 (5).
(6) The registrar may consent under subsection (3) or (4) in the place of the interment or scattering rights holder if,
(a) the whereabouts of an interment or scattering rights holder are not known;
(b) the interment or scattering rights holder is not readily ascertainable; or
(c) the interment or scattering rights holder is not able to consent. O. Reg. 30/11, s. 162 (6).
(7) Before consenting under subsection (6), the registrar shall consider whether any known person may have an interest in the disposition of the remains, and if there is such an interested person, shall order that the person proposing to do the disinterment or removal give notice of it to the interested person in the form and manner that the registrar specifies. O. Reg. 30/11, s. 162 (7).
(8) If a person requests the consent of the registrar under subsection (6), a person who objects to the disinterment or removal may file a written objection, with reasons, with the registrar, at any time before the registrar consents to the disinterment or removal. O. Reg. 30/11, s. 162 (8).
(10) Before consenting to a disinterment or removal, the registrar shall take into account the reasons for objecting that a person with an interest in the remains has. O. Reg. 30/11, s. 162 (10).
(11) The registrar's consent to a disinterment or removal may be subject to the terms and conditions that the registrar considers appropriate. O. Reg. 30/11, s. 162 (11).
(12) The registrar shall give notice of the registrar's decision to,
(a) the person requesting the registrar's consent,
(b) any interested person who was given notice under subsection (7);
(c) any person filing an objection under subsection (8); and
(d) the cemetery operator. O. Reg. 30/11, s. 162 (12).
(13) A person receiving notice of the registrar's decision under subsection (12) may appeal the decision to the Tribunal by mailing or delivering, within 15 days after being served with the decision, a written request for a hearing to the registrar and to the Tribunal. O. Reg. 30/11, s. 162 (13).
(14) If a person appeals the registrar's decision, the Tribunal shall hold a hearing and may uphold the registrar's decision or substitute its decision for that of the registrar. O. Reg. 30/11, s. 162 (14).
(15) The registrar's decision to consent to disinterment or removal shall not take effect until,
(a) the time for appealing the decision has expired; or
(b) if an appeal is brought, the Tribunal has made an order upholding the registrar's decision to consent to the disinterment or removal. O. Reg. 30/11, s. 162 (15).
(16) A medical officer of health may attend at, supervise or direct a disinterment or removal. O. Reg. 30/11, s. 162 (16).
(17) If a medical officer of health determines that remains are those of a person who died of a communicable disease within the meaning of the Health Protection and Promotion Act, the remains shall be dealt with in accordance with that Act. O. Reg. 30/11, s. 162 (17).
(18) No person shall remove a dead human body from a cemetery unless a certificate of a medical officer of health or the cemetery operator has been obtained and affixed to the container holding the body, confirming that the Act and the regulations have been complied with. O. Reg. 30/11, s. 162 (18).
(19) A burial permit under the Vital Statistics Act is not required for the reinterment of a dead human body that has been disinterred in accordance with the Act and the regulations. O. Reg. 30/11, s. 162 (19).
(20) Nothing in this section shall prohibit a cemetery operator from removing human remains placed in a cemetery without permission of the cemetery operator if the removal is authorized by the cemetery by-laws and if the removal is done in accordance with the cemetery by-laws.
Interment and scattering rights certificates
163. (1) A certificate of interment or scattering rights shall include,
(a) the name and location of the cemetery in which the interment or scattering is to take place;
(b) the name of the interment or scattering rights holder;
(c) the location and dimensions of the lot or scattering ground to which the interment or scattering rights relate;
(d) the date on which the interment or scattering rights are purchased or transferred, as the case may be;
(e) the amount paid by the purchaser for the interment or scattering rights;
(f) the amount deposited into the care and maintenance fund or account for the interment or scattering rights;
(g) a statement that, if the interment or scattering rights holder resells or transfers the interment or scattering rights, the endorsed certificate must be returned to the operator before the operator is required to issue a new certificate;
(h) in a conspicuous manner on the certificate, a statement whether any restrictions or obligations exist with respect to the installation of markers and if so, a statement of what they are or a reference to the by-laws containing them;
(i) if the interment rights are in a private structure, the total number of niches, crypts or compartments in the structure; and
(j) if the scattering rights are in a private scattering ground, the total number of scatterings permitted in the scattering ground, including whether the number is unlimited. O. Reg. 30/11, s. 163 (1).
(2) A cemetery operator shall issue a new certificate of interment or scattering rights to a new holder of the rights after the cemetery operator has received the endorsed certificate under subsection 115 (3). O. Reg. 30/11, s. 163 (2).
(3) A cemetery operator may charge a reasonable fee to recover the cost of issuing the new certificate. O. Reg. 30/11, s. 163 (3).
In the case of Heafey v McRae,<1> the Ontario Court of Appeal judgment <2> affirming the original judgment and the proposition that the Estate Trustee's right to possession of the Deceased's body is superseded by the rights of the interment right's holder pursuant to the Cemeteries Act (Revised).<3>
Lajhner v Banoub <4>
This fairly recent case is a decision of the Ontario Superior Court of Justice, the Honourable Justice D. Gunsolus J., which case stands for the proposition that section 29(1) of the Estates Act <5>, does not, as in fact often contended, provide spouses, or those living in a conjugal relationship with the Deceased at the time of death, any priority to the appointment [of the Estate Trustee] over the next-of-kin of a Deceased person. This is important since S. 29 is often interpreted such that it reads as a hierarchal appointment scheme.
To what persons administration shall be granted
29. (1) Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,
(a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;
(b) the next of kin of the deceased; or
(c) the person mentioned in clause (a) and the next of kin,
as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit. R.S.O. 1990, c. E.21, s. 29 (1); 1999, c. 6, s. 23; 2005, c. 5, s. 24; 2006, c. 19, Sched. C, s. 1 (1).
Appointment at request of parties interested
(2) Subject to subsection (3), where a person dies wholly intestate as to his or her property, or leaving a will affecting property but without having appointed an executor thereof, or an executor willing and competent to take probate and the persons entitled to administration, or a majority of such of them as are resident in Ontario, request that another person be appointed to be the administrator of the property of the deceased, or of any part of it, the right that such persons possessed to have administration granted to them in respect of it belongs to such person. R.S.O. 1990, c. E.21, s. 29 (2).
General power as to appointment of administrator under special circumstances
(3) Where a person dies wholly intestate as to his or her property, or leaving a will affecting property but without having appointed an executor thereof willing and competent to take probate, or where the executor was at the time of the death of such person resident out of Ontario, and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the property of the deceased, or of any part of such property, other than the person who if this subsection had not been enacted would have been entitled to the grant of administration, it is not obligatory upon the court to grant administration to the person who if this subsection had not been enacted would have been entitled to a grant thereof, but the court may appoint such person as it thinks fit upon his or her giving such security as it may direct, and every such administration may be limited as it thinks fit. R.S.O. 1990, c. E.21, s. 29 (3).
Appointment of trust corporation
(4) A trust corporation may be appointed as administrator under subsection (2) or (3), either alone or jointly with another person.
Justice Gunsolus states at paragraph 18 of the judgment :
"that a priority scheme would fetter or be a constraint upon the court's role and would detract from the court's parens patriae jurisdiction. Moreover, the judgment clearly indicates that section 29(3) permits the court to have the ultimate discretion to appoint the executor when a person dies intestate".
Buswa v Canzoneri, 2010 ONSC 7137
For further recent case law on whether an Estate Trustee During Litigation may dispose of a Deceased's remains, please read our blog posting: Can the Estate Trustee During Litigation Dispose of the Deceased's Remains
1. Heafey v McRae (1991) CarswellOnt 5263 (Ont. S.C.J.)
2. Heafey v McRae, 2000 CarswellOnt 4415, 5 E.T.R. (3d) 125 (ONCA)
3. Cemeteries Act (Revised) R.S.O. 1990, Chapter C.4
4. Lajhner v Banoub 2009 CarswellOnt 1745, 49 E.T.R. (3d) 87
5. The Estates Act, R.S.O. 1990, Chapter E. 21, Section 29