_____________________________________________ RESOLVING GRAVE DISPUTES _____________________________________________ Jason Ward WARDS LAWYERSPC www.wardlegal.ca RESOLVING GRAVE DISPUTES Jason Ward Wards Lawyers PC Bereavement Sector Legislation…………………………………………………………………... 3 Decision-Making Authority for Disposition of the Deceased……………………………………. 5 (a) Prima Facie Valid Will Exists – Primacy of Appointment by the Deceased………………… 5 (b) No Will (No Trustee Appointment) or No Capable/Willing Trustee – Judicial Appointment of an “Administrator” by the Estates Act……………………………………………………... 6 (c) No Will (No Trustee Appointment) and No Estate Administrator Appointed – the Prima Facie (or Potential) Administrator…………………………………………............................. 8 (d) Challenge to Validity of Will or Need to Protect/Preserve Estate – ETDL…………………... 9 (e) No Will, No Willing Trustee, No Spouse or Next of Kin, No Application Made to be Estate Administrator – Trustee of Last Resort………………………………….................................. 11 (f) Synopsis – Priority of Decision-Makers for Disposition of the Deceased…………………… 12 Decision-Makers of Prima Facie Equal Standing or Rank……………………………………… 12 Qualifications to the Power of the Estate Trustee……………………………………………...... 13 (a) Deceased’s Express Wishes or Directions (Religious and Cultural Issues)………………….. 14 (b) Disposal-Related Duties of the Estate Trustee………………………………………………... 15 (c) Special Purpose/Transformation – the “Work and Skill” Qualification………………………. 16 (d) Causa Mortis Whole Body and Tissue (Organ Donation)……………………………………. 17 (e) Death Investigation (Coroner’s Authority)…………………………………………………… 20 (f) Interment and Scattering Rights………………………………………………………………. 21 (g) Disinterment and Exhumation………………………………………………………………... 23 (h) Criminal Responsibility or Wrongdoing Related to the Deceased’s Death…………………... 24 Places for the Lawful Disposal of Human Remains……………………………………………... 25 (a) Interment and Burial of Human Remains………………………………………….................. 25 (b) Cremated Remains……………………………………………………………………………. 25 Unclaimed (Abandoned) Bodies…………………………………………………………………... 27 Payment for Disposition…………………………………………………………………………… 31 (a) Prima Facie Responsibility for Payment……………………………………………………... 31 (b) Bereavement Contracts with Licensed Operators…………………………………………….. 32 (c) Selling Interment and Scattering Rights……………………………………………………… 34 (d) Additional Sources of Financial Assistance for Funeral Expenses…………………………… 34 (i) CPP Death Benefit……………………………………………………………………... 34 (ii) Ontario Works…………………………………………………………………………. 35 (iii) Local Municipality…………………………………………………………………….. 36 (iv) OPGT – Estates Administration……………………………………………………….. 37 (v) Surviving Spouse………………………………………………………………………. 37 (vi) The Last Post Fund (Veterans)………………………………………………................ 37 Alternative and Emerging Disposal Methods…………………………………………................. 38 Bereavement Sector Reform – Flexibility or Certainty?............................................................... 39 Endnotes and Additional Reference and Information…………………………………………... 41 - 3 - Bereavement Sector Legislation: In Ontario, entitlement to decide both the place and manner of disposal of a deceased person’s body and cremated remains is governed by common law. However, Ontario’s Funeral, Burial and Cremation Services Act (“FBCSA”)1 promulgates certain limitations fettering that decision-making authority both directly and collaterally, by establishing broad parameters for the governance of cemetery, crematorium, funeral home (including funeral directors2, preplanners3 and sales representatives) and transfer service operators4 and their performance of “licensed services”5 and delivery of “licensed supplies”6 and, specifically, for the place and manner of disposal of “human remains”7 by interment (burial)8, cremation9 or “alternative processes or methods”.10 Effectively the FBCSA establishes the “framework for the regulation of the bereavement sector”11, notably by regulating: ● the creation, maintenance and operation of cemeteries, crematoria, funeral establishments, transfer services and burial sites12; ● the licensing of any person selling or offering licensed supplies or services, including the operators (and their sales representatives) of cemeteries, crematoria, funeral establishments (including funeral directors), transfer services and other “bereavement activity”13 and embalming, pre-planning and other sales-related services14; ● a code of ethics governing funeral service providers15; ● procedures for complaints, inspections and investigations regarding licensed operators16; ● bereavement-focused consumer protection17 for the conduct of, or dealings with, licensed operators, including regarding false advertising, soliciting, disclosure obligations, contract requirements and cancellation rights, including for interment and scattering rights18; ● prohibited conduct by licensees and the public regarding the place and manner for the disposal of remains19; ● trust funds and accounts required by licensed operators, including a “care and maintenance fund” by cemetery operators (to “generate income for the care and maintenance of the cemetery”), and the duty of operators to apply to pass accounts before the Superior Court, if directed to do so20; and Resolving Grave Disputes wardlegal.ca - 4 - ● a “Funeral Services Compensation Fund” to benefit those aggrieved if, for example, “licensees have failed to comply with a code of ethics”21. The FBCSA is primarily administered and enforced by the Bereavement Authority of Ontario (“BAO”), an independent, not-for-profit, arm’s-length “Delegated Administrative Authority”, acting on behalf of and subject to oversight by, the Ministry of Government and Consumer Services.22 Effectively the BAO is responsible for “ensuring that funeral, cremation and cemetery licensees comply with the [FBCSA]”23. Commonly when arrangements for the disposition of a deceased person must be made, uncertainty and disputes potentially arise. For example, an estate trustee may not yet be aware of his or her appointment by the deceased or, if aware, that person may be uncertain of his or her responsibilities generally. There may also be confusion or disagreement about the decision- maker authorized to act, particularly if the validity of the deceased’s will is challenged by a disappointed beneficiary, for example. An appointed trustee may also be incapable or unwilling to act, or he or she may renounce, potentially causing more emotionally-charged incertitude in commonly time-sensitive circumstances. If a dispute arises regarding the place of, or manner for, the disposition of a deceased person’s body or remains, including about the person having authority to decide, the FBCSA does not offer resolution directly, other than codifying the sector restrictions generally24. Rather, the common law is activated and, if necessary, the assistance of the Superior Court may be appropriate. Accordingly, for a dispute of this nature that is not directly resolved by the FBCSA, the BOA will generally recommend the licensed operator, often a funeral establishment, or any other interested party, seek necessary legal assistance. Resolving Grave Disputes wardlegal.ca - 5 - Decision-Making Authority for Disposition of the Deceased: (a) Prima Facie Valid Will Exists – Primacy of Appointment by the Deceased: If a validly-executed, last will and testament25 appointing an estate trustee exists, the authority of the trustee to act is derived from the will.26 The estate trustee27 appointed by the prima facie, valid will of a deceased person is empowered to exercise dominion over, and the right to control the place, manner and arrangements for the disposal of, the body of the deceased – the trustee assumes not only the duty, or obligation, to dispose of the deceased’s body, but a corresponding, incidental and rightful custody of the body for disposal lawfully, even if there is a surviving spouse28 - this duty and accompanying possessory right continue after disposition29. This entitlement also arises regardless if the will of the deceased is “probated” by the Superior Court.30 An estate trustee cannot “own” a dead human body – generally, there is “no property in a dead body”31, subject to the narrow exceptions discussed briefly below, which operate to limit or fetter the appointed estate trustee’s prima facie duty, custodial power and decision-making authority. Practically, arrangements for final disposition are commonly made by, or at least involve, the deceased’s family members.32 However, if a dispute arises, the testamentary trustee appointed by the deceased is lawfully authorized to exercise broad discretion and unilaterally determine the manner, place and arrangements for the disposal of the deceased and, unless that exercise of authority offends the sector restrictions prescribed by the FBCSA or is “wholly unreasonable” or capricious33, it will not, save for the “most exceptional circumstances”, be subject to judicial scrutiny.34 Not only the deceased’s dead body, but by extension the disposal of his or her cremated human remains, if any, is subject to the estate trustee’s authority and possessory right. Transforming the corporeal quality of the deceased into remnant ashes inherently creates more opportunity for disputes to arise.35 However, cremating remains may also offer greater flexibility for resolving disputes “because ashes can be divided, housed and spread in ways that a body cannot”36, Resolving Grave Disputes wardlegal.ca - 6 - particularly if a dispute about