Unhappily, it is not uncommon for family members to be at loggerheads as to who controls the body of a loved one and whether the body should be cremated or buried. I previously blogged on the 2018 case Miller v. Miller, a decision by Justice Myers of the ONSC, which dealt with this issue. In summary, the estate trustee has the authority to make funeral and burial arrangements. Nevertheless, fights between family members about burial rituals continue. Two recent examples, dealt with by Justice Mew of the ONSC in Kingston, are both shocking and deeply unfortunate.

Marguerite Timmerman died on October 16, 2019. She was survived by her son, Craig, and daughter, Shannon. Unfortunately, on November 12, 2019, less than a month after his mother passed away, Craig died of a drug overdose. Both Marguerite and Craig died without a will (intestate) and their respective estates were of little value. However, had there been anything to inherit, Shannon would have been entitled to a share of Marguerite’s estate (and possibly Craig’s estate) as next of kin pursuant to Part II of Ontario’s Succession Law Reform Act.

Because there was not enough money in Marguerite’s estate or Craig’s estate to pay for cremation and internment, Marilyn Smith, the sister of Marguerite and the aunt of Craig, contacted Ontario Works for assistance. Marilyn then (mistakenly) thought her work was over – having made the necessary burial arrangements, there was little else that needed to be done to administer the (essentially insolvent) estates.

However, Shannon threw a wrench into Marilyn’s plans by contacting Ontario Works and the cemetery and objecting to the cremations and internments of her brother and mother. Shannon then disappeared and could no longer be contacted (the evidence before the court suggested that Shannon suffered from mental illness). Nevertheless, because of her objections, the cremations did not move forward. As a result, much to Marilyn’s horror, both Marguerite’s body and Craig’s body continued to be warehoused in the Kingston General Hospital’s morgue due to conflicting burial directions (as of June 2, 2020, when these cases were heard, the bodies had remained in the morgue for over six months).

With no other options available to her, Marilyn commenced two applications to the court to be estate trustee for Marguerite’s and Craig’s respective estates. The main purpose of the appointment was to give Marilyn, as estate trustee, the authority to take control of the bodies and ensure that they were cremated and buried in a proper and dignified manner. Marilyn’s applications came before Justice Mew together on the same day.

The issues before the court were: (i) whether it was necessary and in the interests of justice to dispense with the requirement for Marilyn to give notice of her applications to Shannon; and (ii) whether the court should appoint Marilyn as estate trustee of both estates in the absence of a signed runcination from Shannon or her consent to Marilyn’s appointment as estate trustee.

Pursuant to s. 29 of the Estates Act, Shannon was entitled in priority to Marilyn to be named as an estate trustee of the estates of her mother and brother. This meant that, in the normal course, Shannon would have to renounce her right to act as estate trustee and consent to someone else stepping into that role. Anyone else applying for the role of estate trustee would have to do so on notice to Shannon, as she was a beneficiary of both estates (though in reality there was little to distribute, as both Marguerite and Craig died without assets).

The court ultimately accepted the evidence proffered by Marilyn that her sister wanted to be cremated and saw no reason “for those wishes not to be respected and implemented.” The court went on to state: “the delay that has occurred is unconscionable and is due [in] large measure to the difficulty that the applicant [Marilyn], Ontario Works and Kingston General Hospital have had seeking and obtaining coherent instructions from someone with both the capacity and authority to give them. I am satisfied that those efforts have been reasonable and proportionate.”

The court held that Shannon had ample time and opportunity to express her wishes and make alternative burial arrangements, but had been largely absent after logging her objection to Marilyn’s plans. In condemning Shannon’s (in)actions, the court held: “It is intolerable that Kingston General Hospital should be saddled with the responsibility of preserving and keeping these deceased remains for so long.”

The court granted both applications and appointed Marilyn as estate trustee of both estates. The court did ask that Marilyn use “best efforts” to bring the certificate of appointment of estate trustee with a will (to be issued by the Estates Registrar) to Shannon’s attention before the cremation and interment of Marguerite and Craig. However, if Shannon could not be found or was otherwise unavailable, Marilyn was free to do what she thought was appropriate. The court also asked Marilyn to contact the Ontario Children’s Lawyer, as Craig was likely the father of a minor child.

In conclusion: death is difficult for the living to deal with in the best of circumstances. Making decisions about funeral and burial arrangements and the process of applying for a certificate of appointment as an estate trustee (i.e. probate) requires the active participation and cooperation of family members. Disagreements between family members over these issues only add time and frustration to the process. However, procedure should not trump substance. As shown in theses cases, the court acted quickly and sensibly to put things right.

Happy litigating and stay safe,

Justin