The search for a missing submarine captured the world last week, with the U.S. Coastguard calling an end to the search following the tragic discovery of debris on the sea floor consistent with a “catastrophic implosion of the vessel.”

At a depth of around 4km underwater there were no reports of human remains, but it’s almost certain there were no survivors. The end, right? Not so fast.

Declarations of Death

Under Ontario law, death is a medicalized process that relies on the existence of human remains. In the normal course, when a person dies the attending physician or coroner issues a Medical Certificate of Death and gives it to the funeral director, along with the remains of the deceased. The funeral director then issues a Death Certificate, which is required by some organizations, like banks, for an estate trustee to deal with the deceased’s estate.

In circumstances like those of the OceanGate passengers, they are not dead in the eyes of the law but rather “disappeared” or “absent”. Each individual passenger will not be legally dead until an “interested person” successfully makes an application under the Declarations of Death Act, 2002 (the “DoDA”) to obtain a court order declaring them so. An interested person is one of:

• A person named as executor or estate trustee of the individual’s will;
• If no will exists, a person who is entitled to apply to be appointed administrator of the individual’s estate;
• The individual’s spouse or next of kin;
• The individual’s guardian or attorney for personal care or property;
• a person who is in possession of property owned by the individual;
• If the individual had life insurance, the insurer or a potential claimant; or
• If the individual is already declared an absentee under the Absentees Act, the committee of his or her estate (which will be discussed further below)

Under the DoDA the court will make the order declaring that an individual has died if the individual disappeared in circumstances of peril or the individual has been absent for seven years.[1] In addition to those two cases, the applicant must demonstrate that:

• The applicant has not heard of or from the individual since their disappearance;
• After making reasonable inquiries, to the applicant’s knowledge no other person has heard of or from the individual since the disappearance;
• the applicant has no reason to believe that the individual is alive; and
• there is sufficient evidence to find that the individual is dead.

While it’s safe to say that a being on a submersible that subsequently imploded deep underwater qualifies as “disappearing in circumstances of peril”, it is not always so clear cut. In the case of Puffer v. The Public Guardian and Trustee, the court found that Robert Puffer, who at that point had been missing for five years, could not be declared dead. Clearly, he had not yet been absent for 7 years, but the court also found that it could not be said he disappeared in circumstances of peril. The circumstances in question can be summarized as a missing kayak that nobody had seen Mr. Puffer use, a car that nobody had seen Mr. Puffer drive parked by a lake, and past evidence of mental health struggles.

Declaring Someone a Absentee

Though the court was not ready to declare Mr. Puffer dead, the court declared him an “absentee” and appointed his brother “committee of his property”. An absentee is a person who has disappeared, whose whereabouts are unknown, and for whom there is no knowledge as to whether they are alive or dead. The law surrounding declaring a person an absentee is found under the Absentees Act.

Unlike an application to declare someone dead, any person can bring a court application to declare someone an absentee. The bar to have someone declared an absentee is also lower, with fewer criteria. In order to obtain such a declaration, the court must be satisfied that due and satisfactory inquiry has been made. If the court is not satisfied, it may also direct further inquiry be made before making an order.[2]

Once a person has been declared an absentee, the court may also make an order for the custody and management of the absentee’s property. That person is committee of the absentee’s property, and has the same powers, obligations and duties as a guardian of property.

[1] Declaration of Death Act, s. 2

[2] Absentee Act, s. 2