In a recent decision, an Ontario court was faced with a situation where the bodies of a deceased mother and son were held in a hospital morgue for seven months because the remaining family members could not agree on their proper disposal.
The mother died intestate (without a will) on October 16, 2019 in Ontario. She was survived by her two children, a son and daughter. The mother also left behind a sister.
The value of the mother’s estate was nominal, consisting of $1,649 held in a bank account, and her only known sources of income were from the Canada Pension Plan and Old Age Security.
The son subsequently died on 12 November 2019.
The remains of both the mother and son were lodged in a morgue at an Ontario hospital.
Prior to her death, the mother had communicated to her sister that when she died, she wanted to be cremated. After his mother’s death, the son had told the sister that his mother had told him the same thing – that she wanted to be cremated after she died.
A few days after the mother passed away, the sister received a telephone call from the mother’s daughter. The daughter had mental health issues and was homeless. She was not coherent over the phone. The sister believed that the daughter was mentally incapable.
Because there was not enough money in the mother’s bank account to pay for a cremation or burial, the sister contacted Ontario Works for assistance. She believed that she had made the necessary arrangements through Ontario Works to have the mother’s remains cremated and interred in a cemetery. However, those arrangements were not implemented because in the interim, the daughter contacted both the cemetery and Ontario Works to express her opposition to the arrangements that had been made.
Following this, the daughter disappeared. A social worker made numerous attempts over the following weeks and months to make contact with the daughter through possible friends or acquaintances. During the course of these exchanges, the social worker did receive one telephone call from the daughter during which the daughter was incoherent. The social worker felt that she would need to recommend that the daughter be assessed for her capacity to provide instructions. That said, the social worker did ask the daughter if she would consent to having the sister appointed as the person who could make the decision to dispose of the bodies. The daughter did not provide a coherent response, but the social worker was satisfied that nothing said by the daughter at that time could be taken as agreement to the sister’s appointment.
The sister wanted the bodies of both the mother and son to be cremated, with the ashes buried in a proper and dignified manner. This could not be done unless she could demonstrate that she had the authority, as estate trustee, to provide the appropriate instructions.
As a result, the sister filed two applications to the court to be named estate trustee for both estates. This would allow her to confirm instructions for the cremation and interment of the remains of the mother and the son.
Because the daughter was legally entitled to be named as estate trustee in priority over the sister, the issue before the court was whether it was necessary and in the interests of justice to dispense with the requirement for the sister to give notice of her application to the daughter and whether the court should accede to the application in the absence of a renunciation from the daughter or her consent to the sister’s appointment.
The court found that while there was some evidence that, at some time, the mother may have preferred burial to cremation, the court accepted the sister’s evidence that it was the mother’s wish that her remains be cremated.
At the time that the application was heard by the court, it had been seven months since the mother had passed away. The court stated:
“The delay that has occurred is unconscionable and is due [in] large measure to the difficulties that the [sister], Ontario Works and [the 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.
It is also intolerable that [the hospital] should be saddled with the responsibility of preserving and keeping these deceased remains for so long.”
As a result, the court concluded that while the sister should make her best effort to contact the daughter before the mother and son’s bodies were finally laid to rest, the requirement should not delay things further.
The court therefore ordered that if, despite reasonable efforts, the daughter could not be found, or her circumstances were such that she could not immediately participate in any observances associated with the disposal of the mother’s remains, the sister could give such instructions as she felt were appropriate, stating:
“It is in no-one’s interests to delay the administration of this estate and, hence, the removal of the bodies and their cremation or burial, because of [the daughter]’s failure or inability to take any steps herself to address the need to attend to these formalities.”
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